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ARGUMENT  FOR  THE  PLAINTIFFS 


£ 


IN  THE  CASE  OF  THE 


GOLDEN  ROCKET 

BEFORE  THE 

SUPREME  COURT  OF  MAINE. 


TAKING  BY  REBELS  ON  THE  HIGH  SEAS  IS 

PIRACY,  NOT  CAPTURE,  SEIZURE,  OR  DETENTION, 

BY  THE  LAW  OF  INSURANCE. 


Non  alias  magis  sua  populique  Romani  contumelia  indoluisse  Csesarem  ferunt 
quam  quod  desertor  et  prosdo  hostium  more  ageret. 


BOSTON: 

PRESS  OF  JOHN  WILSON  AND  SON. 

1862. 


.Jh**  Sc,  '7°^ 


STATE  OF  MAINE. 


jSuprrme  Suturial  Court* 

PENOBSCOT  COUNTY.  APRIL  TERM,  1862. 


CHARLES  E.  DOLE  &  ANOTHER 


vs. 


MERCHANTS’  MUTUAL  MARINE  INSURANCE  CO. 


ARGUMENT  FOR  THE  PLAINTIFFS. 

The  policy  upon  which  this  action  is  brought  was  made  on  the 
19th  of  November,  1860,  before  any  of  the  pretended  ordinances 
of  secession  or  other  acts  relied  on  by  the  defendants. 

This  policy  purports,  in  the  body  thereof,  to  insure  the 
Golden  Rocket,  for  one  year,  against  “  perils  of  the  seas,  fire, 
enemies,  pirates,  assailing  thieves,  restraints  and  detainments  of 
all  kings,  princes,  and  people,  of  what  nation  or  quality  soever, 
barratry  of  the  master  (unless  the  insured  be  owner  of  the  ves¬ 
sel)  and  of  the  mariners,”  &c. 

“It  is  also  agreed,  that,  in  case  of  capture  or  detention,  the 
insured  shall  not  have  the  right  to  abandon  therefor,  until  proof 
is  exhibited  of  condemnation,  or  of  the  continuance  of  the  deten¬ 
tion  (by  capture  or  other  arrest)  for  at  least  ninety  days.” 

“It  is  also  agreed,  that  the  insurers  shall  not  be  answerable 
for  any  charge,  damage,  or  loss,  which  may  arise  in  consequence 
of  a  seizure  or  detention  for  or  on  account  of  illicit  or  prohibited 
trade,  or  trade  in  articles  contraband  of  war.” 

In  the  margin  of  the  policy,  this  clause  is  printed :  “  War¬ 
ranted  by  the  assured  free  from  capture,  seizure,  detention,  or 
the  consequences  of  any  attempt  thereat,  any  stipulation  to  this 
policy  to  the  contrary  notwithstanding.” 


4 


The  declaration  alleges  that  the  ship  was  “  forcibly  taken  by 
pirates  and  assailing  thieves,  and  utterly  burned  and  destroyed, 
and  thereby  to  the  said  plaintiffs  totally  lost.” 

The  facts  of  the  case,  as  found  by  Mr.  Justice  Appleton,  for 
the  purposes  of  this  argument,  are,  that  on  the  third  day  of  July, 
1801,  the  Golden  Rocket  was  taken  by  the  Sumter,  an  armed 
steamer,  having  no  national  character,  but  claiming  to  act 
under  the  so-called  Confederate  States,  and  first  deceiving  the 
officers  of  the  Golden  Rocket  by  displaying  a  United  States 
flag  (Report,  p.  1)  ;  that  “  the  people  of  the  so-called  Confede¬ 
rate  States,  and  their  assumed  government,”  were  “  conceded 
to  be  in  a  state  of  rebellion  against  the  Government  of  the  United 
States  ”  (Report,  p.  3)  ;  that  the  officers  and  crew  of  the  Sum¬ 
ter  took  out  the  officers  and  crew  of  the  Golden  Rocket, 
stripped  the  Golden  Rocket  of  her  sails,  spars,  &c.,  and  of  all 
that  could  be  easily  taken  away,  and  then  set  her  on  fire,  by 
which  she  was  destroyed  (Report,  p.  1);  and  that  due  notice, 
demand,  and  proof  of  loss,  were  made  (Report,  p.  2). 

The  defendants  offered  in  evidence  sundry  pretended  ordi¬ 
nances  of  secession  of  several  of  the  United  States,  and  a  pretended 
organization  of  a  government  of  the  so-called  Confederate  States  ; 
their  creation  of  a  navy,  and  issue  of  commissions  therein  to  the 
officers  of  the  Sumter ;  and  that  the  rebellious  people  of  those 
States  were  carrying  on  war  against  the  United  States.  All 
which  the  presiding  Judge  rejected  as  immaterial,  and  ordered 
judgment  for  the  plaintiffs. 


Such  being  the  case,  as  presented  by  the  report,  the  plaintiffs 
agree  that  the  only  question  now  arising  thereon  is  accurately 
stated  in  the  opening  argument  for  the  defendants  thus : 

“  The  inquiry  is  not  the  broad  and  general  one,  whether, 
under  some  clause  in  the  body  of  this  policy,  this  loss  might 
come,  but  whether  it  was  a  loss  by  pirates  and  assailing  thieves;” 
“  whether  the  act  of  the  Sumter  was  piratical,  as  between 
underwriter  and  assured,  within  the  meaning  of  this  policy.” 


5 


If  the  rulings  at  the  trial  were  right,  then  the  judgment  for 
the  plaintiffs  is  to  stand.  If  not,  the  default  is  to  be  taken  off, 
and  the  cause  stand  for  trial  (Report,  p.  4). 

The  issue  presented  by  the  report  naturally  divides  itself  into 
two  questions : 

I.  Whether  the  loss  was  by  “  pirates  and  assailing  thieves,” 
within  the  meaning  of  the  body  of  the  policy. 

II.  Whether  such  a  loss  falls  within  the  risks  excepted  in  the 
marginal  clause. 

I.  THE  LOSS  WAS  BY  PIRATES  AND  ASSAILING  THIEVES. 

Upon  the  first  question,  the  grounds  taken  by  the  learned 
counsel  for  the  defendants  make  it  proper  to  go  into  a  fuller 
demonstration  than  would  otherwise  have  been  presented. 

The  facts  found  are,  that  the  Sumter  held  herself  out  as  an 
armed  vessel  of  the  United  States,  until  she  had  induced  the 
captain  of  the  Golden  Rocket  to  go  on  board  of  her ;  that  she 
then  took  out  the  officers  and  crew  of  the  Golden  Rocket, 
deprived  them  of  their  ship,  took  and  carried  away  her  sails, 
spars,  &c.,  and  destroyed  her  by  fire. 

These  acts,  done  without  a  commission  from  any  recognized 
power,  were  piratical,  according  to  every  system  of  law  known 
among  civilized  nations. 

1.  Pirates  by  the  Municipal  Law. 

These  acts  were  criminally  punishable  as  piracy  by  the  com¬ 
mon  and  statute  law  of  England,  of  the  British  Colonies  in 
America,  and  of  the  United  States. 

“  A  pirate,  at  the  common  law,  is  a  person  who  commits  any 
of  those  acts  of  robbery  and  depredation  upon  the  high  seas, 
which,  if  committed  on  land,  would  have  amounted  to  felony 
there.” 

1  Hawk.  c.  37,  §  4. 

4  Bl.  Com.  72. 

1  Russell  on  Crimes  (7th  ed.),  100. 


6 


Lord  Coke  says,  “  This  word  ‘  pirat,’  in  Latiue  pirata,  is  de¬ 
rived  from  the  Greek  word  ‘■Keip&rricf  which  again  is  fetched  from 
‘ mipu a  transeundo  mare ,  of  roving  upon  the  sea;  and  therefore, 
in  English,  a  pirat  is  called  a  rover  and  a  robber  upon  the 
sea.”  3  Inst.  113. 

At  common  law,  before  the  statute  of  25  Edward  3,  piracy 
committed  by  one  subject  upon  another  was  treason,  being  con¬ 
trary  to  his  natural  allegiance ;  though  in  an  alien  it  was  only 
felony. 

4  Bl.  Com.  71. 

1  Molloy,  c.  4,  §§  9, 10. 

In  1699,  the  British  Parliament,  in  order  to  remove  the  doubts 
entertained  by  some  civilians  upon  the  conviction  for  piracy  of 
persons  holding  commissions  as  privateers  from  James  the  Second, 
by  the  admiralty  judges  of  William  the  Third,  passed  the  statute 
of  11  &  12  W.  3,  c.  7  ;  by  §  8  of  which,  any  natural-born  subject, 
committing  any  act  of  hostility  upon  the  high  seas  against  other 
British  subjects,  under  color  of  a  commission  from  any  foreign 
power,  should  be  deemed  a  pirate,  although  this  would  be  only 
an  act  of  war  in  an  alien. 

Hawkins  &  Blackstone,  ubi  supra. 

,1  Molloy,  c.  4,  §  24. 

The  laws  of  France  and  of  Holland  contained  like  pro¬ 
visions. 

2  Valin,  Ordonnance  de  la  Marine,  235  &  seq. 

Bynkershoek,  Qu.  Jur.  Pub.  lib.  1,  c.  17. 

In  1782,  it  was  held  by  all  the  judges  of  England,  that  under 
this  statute  of  William  3,  and  the  statute  of  18  Geoi'ge  2  in 
pari  materia ,  traitors  levying  war  at  sea  against  the  king  might 
be  tried  and  convicted  as  pirates. 

Evans’s  Case,  2  East  P.  C.  798,  799. 

The  English  Statute  of  11  &  12  W.  3  was  made  perpetual 
by  St.  6  G.  1,  c.  19,  §  3.  It  in  terms  extended  to  the  Colonies, 


and  was  used  and  adopted  here,  especially  in  the  Province  of  Mas¬ 
sachusetts  Bay ;  and  therefore  remained  in  full  force  here  after 
the  Revolution,  until  altered  or  repealed. 

St.  11  &  12  W.  3,  c.  7,  §§  1,  14, 15. 

See  also  St.  4  G.  1,  c.  11,  §§  7,  9. 

2  Chalmers  Opinions,  202,  219,  221. 

Trial  of  Quelch  (1704),  14  Howell’s  State  Trials,  1067. 

Cases  of  Corbet  and  Nickerson  (17 69) ,  2  John  Adams’s  Works, 
224,  526,  533  ;  3  Hutchinson’s  Hist.  Mass.  231,  420. 

Constitution  of  Massachusetts,  c.  6,  §  6. 

The  laws  of  the  Massachusetts  Colony  on  this  subject  are 
worthy  of  being  referred  to,  as  matter  of  curiosity,  if  not  of  au¬ 
thority,  to  show  how  applicable  their  principles  are  to  the  present 
time,  and,  in  part  at  least,  to  the  case  at  bar. 

By  the  Body  of  Liberties  of  1641, art.  94, §  12,  “if  any  man  shall 
conspire  and  attempt  any  invasion,  insurrection,  or  public  rebellion, 
against  our  Commonwealth,  or  shall  endeavor  to  surprise  any 
town  or  towns,  fort  or  forts,  therein,  or  shall  treacherously  and 
perfidiously  attempt  the  alteration  and  subversion  of  our  frame 
of  polity  or  government  fundamentally,  he  shall  be  put  to 
death.”  28  Mass.  Hist.  Coll.  233  ;  Anc.  Chart.  59. 

By  a  Colony  law  of  1673,  piracy  in  harbors  or  at  sea,  by 
piratically  seizing  a  vessel  or  rising  on  the  master,  was  punished 
with  death,  in  terms  very  like  those  of  the  subsequent  English 
Statute  of  W.  3. 

4  Mass.  Col.  Rec.  part  ii.  563  ;  7  Dane  Ab.  90. 

By  the  Constitution  of  the  United  States,  Congress  has  power 
“  to  define  and  punish  piracies  and  felonies  committed  on  the  high 
seas.”  Constitution  U.S.,  art.  1,  §  8. 

In  the  exercise  of  this  power,  the  first  Congress  of  the  United 
States  in  terms  adopted  the  common  law  of  England,  and  the 
statute  of  11  &  12  W.  3,  c.  7,  §  8,  as  follows : 

“  If  any  person  shall  commit  upon  the  high  seas  murder 
or  robbery,  or  any  other  offence,  which,  if  committed  within 


8 


the  body  of  a  county,  would,  by  the  laws  of  the  United  States, 
be  punishable  with  death,”  “  every  such  offender  shall  be 
deemed,  taken,  and  adjudged  to  be  a  pirate  and  felon  ;  and,  being 
thereof  convicted,  shall  suffer  death.” 

Act  of  1790,  c.  35,  §  8 ;  1  U.S.  Sts.  at  Large,  113. 

It  is  not  necessary,  to  make  robbery  on  the  high  seas  piracy, 
under  this  section,  that  it  should,  if  committed  on  land,  be 
punishable  with  death ;  or  that  it  should  be  accompanied  with 
any  force  or  violence  to  the  person  robbed,  or  any  putting  in 
fear. 

United  States  vs.  Palmer,  8  Wheat.  610,  628,  630. 

United  States  vs.  Hutchings,  2  Wheeler  C.  C.  547. 

United  States  vs.  Tully,  1  Gallis.  252,  253. 

By  a  subsequent  act,  “  if  any  person  shall  upon  the  high 
seas  commit  the  ci'ime  of  robbery  in  and  upon  any  ship  or  vessel, 
or  upon  any  of  the  ship’s  company  of  any  ship  or  vessel,  or  the 
lading  thereof,  such  person  shall  be  adjudged  to  be  a  pirate,” 
and,  upon  conviction,  shall  suffer  death. 

Act  of  Congress  of  1820,  c.  113,  §  3  ;  8  U.  S.  Sts.  at  Large,  600. 

The  act  of  1790  further  provides  that  “if  any  citizen  shall 
commit  any  piracy  or  robbery  aforesaid,  or  any  act  of  hostility 
against  the  United  States  or  any  citizen  thereof,  upon  the  high 
seas,  under  color  of  any  commission  from  any  foreign  prince  or 
state,  or  on  pretence  of  authority  from  any  person,  such  offender 
shall,  notwithstanding  the  pretence  of  any  such  authority,  be 
deemed,  adjudged,  and  taken  to  be  a  pirate,  felon,  and  robber; 
and,  on  being  thereof  convicted,  shall  suffer  death.” 

Act  of  1790,  c.  85,  §  9  ;  1  U.S.  Sts.  at  Large,  114. 

Within  these  definitions,  the  officers  and  crew  of  the  Sumpter 
were  pirates  — 

First,  In  robbing  and  despoiling  the  owners,  master,  and  crew 
of  the  Golden  Rocket  of  their  vessel,  and  of  its  spars,  sails,  <fcc. 

Second,  In  committing  an  act  of  hostility  against  the  United 
States,  on  a  pretence  of  authority. 

It  is  true,  as  suggested  by  the  defendants’  counsel,  that  in 


9 


order  to  bring  the  case  within  the  acts  of  1790,  c.  35,  §  9,  or  1847, 
c.  51,  it  must  appear  that  some  of  the  officers  and  crew  of  the 
Sumter  were  citizens  of  the  United  States,  or  of  a  foreign  State 
by  treaty  between  which  and  the  United  States  they  are  to  be 
deemed  pirates.  But,  if  nothing  else  is  wanting,  the  defendants 
can  hardly  wish  to  go  to  trial  upon  that  question. 

The  defendants,  however,  have  appealed  from  the  municipal 
law  to  the  law  of  nations,  for  a  definition  of  piracy  ;  in  answer  to 
which,  the  plaintiffs  respectfully  submit  — 


2.  Pirates  by  the  Law  oe  Nations. 

The  Sumter’s  men  were  pirates,  within  the  definitions  of  that 
crime  by  the  most  eminent  civilians  and  writers  on  the  law  of 
nations. 

The  oldest  definition  we  have  found  is  one  quoted  by  Selden 
and  Ducange  from  an  old  Greek  commentator  on  the  Ajax  of 
Sophocles,  who  defines  “ndpa”  as  “  bblor  Kai  ~txvv,''  (fraud  or  craft,) 

“  o&ev  Kai  neipurai  bi  ko.tu  OuXaoBav  KuKOvoyoL,”  (whence  evil-doei’S  Oil  tile 

sea  are  called  pirates.) 

Mare  Clausum,  c.  10;  2  Selden’s  Works,  1313. 

Ducange  Gloss,  voce  “  Pirata.” 

Ducange  seems  to  give  the  preference  to  the  definition  of  “an 
armed  sea-thief”  —  “  Miles  maritimus,  qui  Latinis  prcedo,  vel.  latro 
maritimus .  Latrones  nude  piratos  vocat  Florus ,  et  latrocinari 
dixit  pro  piraticam  exercereP 

The  etymology  of  “ pirata,”  by  some  of  the  early  jurists  cited 
by  Ducange,  was  derived  from  "nip,”  fire,  from  their  habit  of 
burning  ships;  e.g. :  “ Pirata;  sunt  prcedones  marini ,  ah  incen- 
dio  navium  vel  insularum  quos  capiebant.”  “  Pyrata  dicitur 
a  pir ,  quod  est  ignis ,  quia  ferunt  ignem  in  manu  sua 

Although  this  may  not  be  sound  as  etymology,  it  pretty  clear¬ 
ly  shows  that  such  acts  were  piratical. 

Bynkershoek  says,  “  Qui  autem  nullius  principis  auctoritate , 
sive  mari,  sive  terra ,  rapiunt ,  piratarum  praidonumque  vocabulo 

2 


10 


intelliguntur Or,  as  translated  by  Duponceau, 44  We  call  pirates 
and  plunderers ,  those  who,  without  the  authorization  of  any 
sovereign,  commit  depredations  by  sea  or  land.” 

Bynkershoek,  Qu.  Jur.  Pub.  lib.  1,  c.  17. 

Law  of  War,  127. 

44  If  a  pirate  shall  attack  a  ship,  and  the  master,  for  the  re¬ 
demption,  shall  give  his  oath  to  pay  a  sum  certain,  though  there 
be  no  taking,  yet  is  the  same  piracy  by  the  law  marine ;  but  by 
the  common  law  there  must  be  an  actual  taking,  though  it  be 
but  to  the  value  of  a  penny,  as  to  a  robbery  on  the  high¬ 
way.”  1  Molloy,  c.  4,  §  18 ;  citing  authorities. 

If  one  ship  attacks  another  ship  at  sea,  and  takes  out  some 
victuals,  cables,  ropes,  anchors,  or  sails,  this  is  piracy ;  unless 
the  attacking  ship  is  in  necessity,  and  pays  for  the  things 
taken.  1  Molloy,  c.  4,  §  20. 

So  Dr.  Browne :  44  Piracy  is  depredation  without  any  authori¬ 
ty  from  any  prince  or  state  ;  or  transgression  of  authority  given, 
by  despoiling  beyond  its  warrant.”  2  Civ.  &  Adm.  Law  (2d  ed.), 
461. 

Duponceau  suggests,  as  a  definition  of  a  pirate,  44  he  who, 
sailing  without  being  authorized  by  any  sovereign,  (or  with  com¬ 
missions  from  different  sovereigns  at  war  with  each  other,) 
commits  depredations  at  sea  or  on  shore.” 

Law  of  War,  128,  note. 

It  is  true  that  Judge  Story,  in  a  case  (on  which  the  defendants 
rely)  under  the  act  of  Congress  of  1819,  c.  76,  §  5,  punishing 
44  the  crime  of  piracy  as  defined  by  the  law  of  nations,”  said, 
44  Whatever  may  be  the  diversity  of  definitions  in  other  respects, 
all  writers  concur  in  holding  that  robbery  or  forcible  depredation 
upon  the  sea,  animo  furandi,  is  piracy.” 

United  States  vs.  Smith,  5  Wheat.  161. 

But  he  did  not  say  that  the  intent  to  steal  was  essential  to  the 
crime ;  and  the  authorities  collected  by  him  (1  Story’s  Life  of 
Story,  283,)  in  a  note  to  that  case,  show  that  it  was  not;  and  are 
cited  by  Mr.  Wheaton  (who  can  hardly  have  misunderstood  their 
meaning)  as  establishing  this  proposition  : 


11 


“  Piracy  is  defined  by  the  text-writers  to  be  the  offence  of 
depredating  on  the  seas,  without  being  authorized  by  any  sove¬ 
reign  state,  or  with  commissions  from  different  sovereigns  at  war 
with  each  other.” 

Wheaton’s  Elements  of  International  Law  (6th  ed.),  184. 

In  that  note,  Judge  Story  observes,  that  “  the  state  trials  for  pi¬ 
racy  in  the  reign  of  William  3  are  entitled  to  great  consideration, 
both  from  the  eminent  talents  of  the  judges  who  constituted  the 
tribunal,  and  the  universal  approbation  of  the  legal  principles  as¬ 
serted  by  them.  It  is  also  worthy  of  remark,  that  in  none  of  their 
indictments  was  there  any  averment  that  the  prisoners  were  British 
subjects  ;  and  most  of  them  were  for  piracies  committed  on  foreign 
subjects  and  vessels.  They  were  all  framed  as  indictments  at 
common  law,  or  for  general  piracy,  without  reference  to  any  Bri¬ 
tish  statute.”  5  Wheaton,  177,  note. 

In  one  of  the  cases  thus  referred  to,  Sir  Charles  Hedges,  Judge 
of  the  High  Court  of  Admiralty,  assisted  by  Lord  Holt  and  other 
eminent  common  lawyers  and  civilians,  laid  down  this  rule:  “If 
any  man  be  assaulted  within  the  jurisdiction  of  the  Admiralty, 
and  his  ship  or  goods  violently  taken  away  without  legal  au¬ 
thority,  this  is  robbery  and  piracy.” 

Dawson’s  Trial,  13  Howell’s  State  Trials,  454. 

In  another,  Lord  Holt  recognized  the  doctrine,  that  prizes, 
taken  by  persons  not  acting  “  by  a  commission  from  a  sovereign 
prince  that  was  an  enemy,”  “  would  make  them  to  be  pirates.” 

Vaughan’s  Trial,  13  Howell’s  State  Trials,  525. 

It  would  seem  to  be  fully  established  by  these  authorities,  that 
the  only  elements  necessary  to  constitute  the  crime  of  piracy,  by 
the  law  of  nations,  are  forcible  depredation  on  the  high  seas,  and 
want  of  authority  from  any  sovereign  state. 

3.  Rebellion  no  Excuse  for  Treason  or  Piracy. 

Rebels  in  arms  are  not  entitled  by  the  law  of  nations  to  be 
recognized  as  belligerents  by  their  own  country. 


12 


“If  the  Constitution  be  altered  by  an  unjust  rebellion,  the 
liberty  thus  usurped  so  long  continues  unlawful  as  the  rightful 
prince  shall  labor  to  reduce  the  rebels  to  obedience  ;  or,  at  least, 
by  solemn  declaration  shall  protest  and  preserve  his  right  over 
them  ;  till,  by  long  acquiescence  and  silence,  he  may  be  pre¬ 
sumed  to  have  given  up  his  claim.” 

Puffendorf,  lib.  7,  c.  7,  §  5. 

Grotius  classes  belligerent  rebels  with  pirates  and  robbers, 
and  not  with  nations  who  can  wage  war,  quoting  from  the  civil 
law,  thus :  “  Et  Paulus.  A  piratis  aut  latronibus  capti  liberi 
permanent  (Captives  of  pirates  and  robbers  remain  free). 
Accedat  illud  Ulpiani.  In  civilis  dissensionibus  .  .  .  qui  in 
alterutras  partes  discedent  vice  liostium  non  sunt  eorum  inter 
quos  jura  captivitatum  aut  postliminiorum  fuerint;  et  ideo  captos, 
et  venundatos,  posteaque  manumissos,  placuit  supervacuo  repelere 
a  Principe  ingenuitatem ,  quam  nulla  captivitate  amiserant  (In 
civil  wars,  members  of  opposing  parties  are  not  like  enemies,  be¬ 
tween  whom  the  rights  of  captivity  and  postliminy  take  effect ; 
and  therefore,  if  taken  and  sold,  and  afterwards  freed,  they  need 
no  restitution  of  the  rights  of  free-born  citizens,  which  they  had 
lost  by  no  captivity).” 

De  Jure  Belli  &  Pacis,  lib.  3,  c.  3,  art.  1,  §  1. 

Indeed,  to  the  mind  of  Grotius,  robbers  and  armed  rebels 
were  so  identical,  that,  on  the  next  page  (art.  2,  §  3,)  he  con¬ 
founds  the  application  of  the  two  passages  above  cited  ;  saying, 
UA  latronibus  captos  capientium  non  fieri  supra  dicentem  audi- 
vimus  Ulpianum  (The  captives  of  robbers  do  not  become  their 
slaves,  as  we  have  heard  Ulpian  say  above).”  Whereas,  in  fact,  it 
was  Paulus  that  spoke  of  pirates  and  robbers,  and  Ulpian  of  civil 
dissensions  only. 

Dr.  Rutherforth,  speaking  of  forcible  resistance  to  the  laws, 
says,  “  When  the  seditious  members  are  so  strong,  that  the  execu¬ 
tive  body  is  obliged  to  interpose  and  to  take  the  command  and 
direction  of  the  military  force,  this  contention  is  called  a  rebel¬ 
lion  on  the  part  of  the  subjects,  and  may  be  called  a  civil  war  on 
the  part  of  the  society.” 

2  Rutherforth’s  Institutes,  lib.  2,  c.  9,  p.  483  (3d  ed.). 


13 


General  Halleck,  after  stating  that,  in  civil  wars,  “  each  party 
is  usually  entitled  to  the  rights  of  war  as  against  the  other,  and 
also  with  respect  to  neutrals,”  adds,  “  Mere  rebellions,  however, 
are  considered  as  exceptions  to  this  rule  ;  as  every  govern¬ 
ment  treats  those  who  rebel  against  its  authority  according  to  its 
own  municipal  laws,  and  without  regard  to  the  general  rules  of 
war  which  international  jurisprudence  establishes  between  sove¬ 
reign  states.”  “  Every  neutral  State  in  such  a  contest  must 
determine  for  itself  when  it  will  consider  a  party  in  a  rebellion, 
insurrection,  revolution,  or  civil  war,  entitled  to  the  rights  of  a 
belligerent  in  its  international  relations.” 

Halleck’s  International  Law,  c.  14,  §  9. 

Upon  this  point,  the  decisions  in  cases  of  treason  are  very 
strong.  It  is  perfectly  well  settled,  that  adhering  to  armed 
rebels,  giving  them  aid  and  comfort,  is  to  be  indicted  as  levying 
war  against  the  king,  and  not  as  adhering  to  the  king’s  enemies, 
because,  as  Lord  Coke  says,  “  the  subjects  of  the  king,  though 
they  be  in  open  war  or  rebellion  against  the  king,  yet  are  they 
not  the  king’s  enemies,  but  traitors  ;  for  enemies  be  those  that 
be  out  of  the  allegiance  of  the  king.”  3  Inst.  11. 

So  Lord  Hale:  “  Those  that  raise  war  against  the  king  may 
be  of  two  kinds,  subjects  or  foreigners :  the  former  are  not  pro¬ 
perly  enemies,  but  rebels  or  traitors  ;  the  latter  are  those  that 
come  properly  under  the  name  of  enemies.”  1  Hale  P.  C.  159. 

And  this  principle  has  been  very  recently  applied  to  the  pre¬ 
sent  rebellion  by  Mr.  Justice  Swayne,  of  the  Supreme  Court  of 
the  United  States,  by  whom  an  indictment  against  one  who  sup¬ 
plied  the  rebels  with  arms  was  quashed,  because  it  described  the 
rebels  as  enemies,  and  charged  the  defendant  with  adhering  to 
them,  giving  them  aid  and  comfort,  instead  of  directly  charging 
him  with  levying  war  against  the  United  States. 

United  States  vs.  Chenweth,  C.  C.  U.  S.  Ohio,  April,  1862. 

♦ 

In  England,  in  1693,  privateersmen,  taken  “since  the  com¬ 
mencement  of  King  William’s  war  ”  (how  soon  after  does  not 


14 


appear  by  the  report,  further  than  that  they  had  been  in  prison  for 
some  time  before  the  trial),  acting  under  commissions  from  James  2, 
were,  after  full  consideration  and  discussion,  tried,  condemned, 
and  executed  as  pirates,  notwithstanding  that  James  was  admit¬ 
ted  to  have  once  been,  and  still  claimed  to  be,  the  rightful  king 
of  Great  Britain. 

Trials  of  Golding  &  others,  12  Howell’s  State  Trials,  1269-1280. 

These  are  among  the  trials  which  Judge  Story  said  (a«/e,  11,) 
were  entitled  to  great  consideration.  And  Dr.  Phillimore,  after 
stating  the  arguments  in  the  matter,  concludes :  “  The  reason 
of  the  tiling  must  be  allowed  to  preponderate  greatly  towards  the 
position,  that  these  privateers  were  jure  gentium  pirates.” 

1  Phillimore’s  International  Law,  406. 

In  the  debate  in  the  House  of  Lords  on  the  14th  of  May, 
1861,  on  the  Queen’s  proclamation  recognizing  the  rebels  as  belli¬ 
gerents,  Lord  Kingsdown  (better  known  to  lawyers  as  Pemberton 
Leigh),  in  speaking  of  the  effect,  upon  rebel  privateersmen,  of  the 
proclamation  of  the  President  of  the  United  States  declaring 
them  to  be  pirates,  said,  “  Of  course  it  was  a  matter  for  their 
own  consideration  what  was  to  be  the  operation  of  that  proclama¬ 
tion.”  Lord  Chelmsford  (recently  Lord  High  Chancellor) 
agreed,  that  “  if  the  Southern  Confederacy  had  not  been  recog¬ 
nized  as  a  belligerent  power,  if  any  Englishman  were  to  fit  out  a 
privateer  for  the  purpose  of  assisting  the  Southern  States  against 
the  Northern  States,  he  would  be  guilty  of  piracy.”  Lord 
Brougham  said  that  Englishmen,  even  now,  could  not  expect  their 
government  to  interfere.  And  although  a  difference  of  opinion 
was  manifested  upon  the  questions,  whether  Englishmen,  since 
England  had  recognized  the  rebels  as  belligerents,  could  be 
treated  as  pirates  by  the  United  States;  and  whether  it  would 
be  civilized  in  the  United  States  to  treat  the  rebels  as  pirates  ; 
no  doubt  was  expressed  that  the  United  States  might  lawfully 
hang  the  rebels  as  pirates,  if  they  should  see  fit. 

1  Moore’s  Rebellion  Record,  249,  250. 


15 


The  argument  of  the  learned  counsel  for  the  defendants 
(p.  3)  —  “Neither  was  there  any  purpose  to  act  as  hostis  hurnani 
generis ,  but  only  to  prosecute  a  civil  war  against  the  Government 
of  the  United  States”  —  is  but  a  restatement  of  the  point  made 
by  Sir  Thomas  Pinfold,  before  the  Lords  of  the  Council,  in  favor 
of  James  the  Second’s  privateersmen. 

“  It  was  impossible  they  should  be  pirates ;  for  a  pirate  was 
1  hostis  humani  generis :  ’  but  they  were  not  enemies  to  all  man¬ 
kind  ;  therefore  they  could  not  be  pirates.”  “  Upon  which,”  it  is 
reported,  “  all  smiled  ;  and  one  of  the  lords  asked  him,  Whether 
there  ever  was  any  such  thing  as  a  pirate,  if  none  could  be  pirate 
but  he  that  was  actually  in  war  with  all  mankind  ?  To  which  he 
did  not  reply,  but  only  repeated  what  he  had  said  before.” 

In  reporting  this,  Dr.  Tindall  adds  an  explanation  not  inap¬ 
plicable  to  the  case  at  bar.  “  Hostis  humani  generis he  says, 
“  is  neither  a  definition,  or  as  much  as  a  description,  of  a  pirate, 
but  a  rhetorical  invective  to  show  the  odiousness  of  that  crime. 
As  a  man,  who,  though  he  receives  protection  from  a  government, 
and  has  sworn  to  be  true  to  it,  yet  acts  against  it  as  much  as  lie 
dares,  may  be  said  to  be  an  enemy  to  all  governments,  because 
he  destroyeth,  as  far  as  in  him  lieth,  all  government,  and  all 
order,  by  breaking  all  those  ties  and  bonds  that  unite  people  in  a 
civil  society  under  any  government :  so  a  man  that  breaks  the 
common  rules  of  honesty  and  justice,  which  are  essential  to 
the  well-being  of  mankind,  by  robbing  but  one  nation,  may  justly 
be  termed  ‘  hostis  humani  generis  ;  ’  and  that  nation  has  the  same 
right  to  punish  him,  as  if  he  had  actually  robbed  all  nations.” 
Tindall’s  Law  of  Nations,  quoted  in  12  Howell’s  State  Trials, 
1271,  1272,  note,  and  approved  by  Phillimore  (ante,  14),  and  by 
Lord  Chelmsford,  1  Moore’s  Rebellion  Record,  250. 

In  Davison  vs.  Seal  Skins,  2  Paine,  324,  relied  on  by  the 
defendants  (p.  3),  the  seizure  in  question  was  made  under  a  com 
mission  from  Buenos  Ayres,  after  it  had  been  recognized  by  the 
United  States  as  an  independent  government.  That  case  is  more 
in  point  upon  the  other  branch  of  this  case  —  the  meaning  of  the 
word  “  seizure,”  post ,  44. 


16 


Even  acts  (lone  under  a  commission  from  a  recognized  foreign 
government,  or  by  insurgents  in  arms  against  such  a  government, 
are  not  always  protected  from  the  consequences  of  piracy. 

Act  of  Congress  of  1790,  c.  35,  §  9,  ante ,  8. 

United  States  vs.  Brailsford,  5  Wheat.  188,  201,  202. 

United  States  vs.  Jones,  3  Wash.  C.  C.  216,  232. 

The  Magellan  Pirates,  1  Spinks,  83,  84,  85. 

The  defendants  do  not  contend  that  the  officers  and  crew 
of  the  Sumter  owed  any  allegiance  to  any  of  the  States,  singly 
or  as  a  confederacy,  that  pretended  to  have  seceded,  which 
would  excuse  them  from  their  allegiance  to  the  Federal  Go¬ 
vernment.  And,  although  the  expression  of  their  counsel,  “  If  the 
commission  under  which  they  acted  should  be  held  to  confer  no 
legal  authority”  (p.  3),  would  seem  to  contemplate  a  possibility 
that  the  Court  might  hold  such  a  commission  to  confer  some  legal 
authority,  the  counsel  for  the  plaintiffs  do  not  consider  it  neces¬ 
sary  or  fit  to  argue  to  this  Court  the  unconstitutionality,  ille¬ 
gality,  and  invalidity  of  secession. 

In  United  States  vs.  Klintock,  5  Wheat.  149,  (on  which  the 
defendants  rely  as  showing  that  “  it  may  be  a  most  material 
inquiry,  whether  they  did  not  act  in  good  faith,”  p.  3,)  the 
defendant  produced  a  commission  purporting  to  be  issued  by  a 
foreign  officer  outside  of  the  territory  of  the  United  States,  but 
was  held  guilty  of  piracy  on  proof  of  acts  which  his  commission 
did  not  even  pretend  to  justify ;  and  Chief  Justice  Marshall, 
according  to  his  practice  of  abstaining  from  extrajudicial  dicta , 
omitted  all  expression  of  opinion  upon  the  question,  “  whether 
a  person,  acting  with  good  faith  under  such  commission ,  may 
or  may  not  be  guilty  of  piracy.” 

But  when  that  point  was  judicially  before  him,  upon  a  trial 
for  piracy  of  the  master  of  a  vessel  having  a  commission  from 
Buenos  Ayres,  then  at  war  with  Spain,  which  had  taken  only 
Spanish  vessels  ;  although  “  the  general  conduct  of”  his  ship  “  ap¬ 
peared  to  be  that  of  a  regularly  commissioned  vessel,”  and  the 
indictment  was  not  uuon  ^  9  of  the  act  of  1790,  for  acting  under 


17 


a  commission  of  a  foreign  government,  or  other  pretence  of  au¬ 
thority,  but  upon  §  8,  for  robbery  upon  the  high  seas ;  the  Chief 
Justice  refused  to  admit  the  commission  in  justification,  upon 
the  ground,  “  that,  as  our  Executive  had  never  recognized  the 
independence  of  Buenos  Ayres,  it  was  not  competent  to  the 
Court  to  pronounce  its  independence ;  that  therefore  the  Court 
could  not  acknowledge  the  right  of  that  country  to  have  a  na¬ 
tional  seal,  and  of  course  that  the  seals  attached  to  the  com¬ 
missions  in  question  proved  nothing.” 

U.  S.  vs.  Hutchings,  2  Wheeler  C.  C.  543,  544,  546,  547. 

An  able  discussion  of  this  question  in  the  American  Jurist 
concludes  thus :  “  It  is,  then,  a  principle  not  to  be  contradicted, 
that  whoever  takes  a  commission  to  wage  private  war  from  any 
other  than  his  own  sovereign,  does  it  at  his  own  peril,  and  must 
know  that  the  commission  that  he  receives  is  lawful ;  otherwise 
he  cannot  shelter  himself  under  the  plea  of  good  faith.  Any 
other  position  appears  inconsistent  with  the  safety  of  mankind. 
There  can  be  no  good  faith  when  a  man  receives  a  commission 
from  an  individual,  styling  himself  as  he  will,  who  undertakes  to 
deliver  them,  while  his  right  so  to  do  is  unacknowledged  by  the 
government  of  the  country  where  he  is,  and  when  the  nation, 
in  the  service  of  which  he  claims  to  be,  is  not  even  known  to  that 
government.”  10  Amer.  Jurist,  267,  268. 

We  have  just  seen  that  the  United  States  statute  of  1790,  as 
expounded  by  Chief  Justice  Marshall,  is  not  confined  to  acts  done 
under  false  pretences,  but  extends  to  acts,  which  would  be  law¬ 
ful  in  a  belligerent,  done  in  good  faith,  under  an  actual  commis¬ 
sion,  the  only  objection  to  which  is  that  it  comes  from  a  power 
whose  right  to  wage  war  is  not  recognized  by  the  Government  of 
the  United  States. 

Much  less  can  one,  committing  acts  of  hostility  upon  the 
high  seas  against  citizens  of  the  United  States,  find  protection 
under  a  commission  from  an  independent  government  within  the 
territory  of  the  United  States,  which  he  is  bound  to  know,  and 
our  courts  are  bound  to  hold,  to  be  illegal. 

3 


18 


The  laws  of  foreign  countries  are  treated  in  our  courts  as 
facts,  the  ignorance  of  which  may  be  excusable.  But  the  igno¬ 
rance,  whether  wilful  or  accidental,  of  our  own  Constitution  and 
laws,  is  no  excuse  in  our  Courts.  Juris  ignorantia  est  cum  jus 
nostrum  ignoramus. 

.  Church  vs.  Hubbart,  2  Cranch,  236. 

Haven  vs.  Foster,  9  Pick.  130. 

“  Ignorance  or  mistake  is  another  defect  of  will ;  when  a  man, 
intending  to  do  a  lawful  act,  does  that  which  is  unlawful.”  “  But 
this  must  be  an  ignorance  or  mistake  of  fact,  and  not  an  error  in 
point  of  law.”  “  If  a  man  thinks  he  has  a  right  to  kill  a  person 
excommunicated  or  outlawed,  wherever  he  meets  him,  and  does 
so,  this  is  wilful  murder.  For  a  mistake  in  point  of  law,  which 
every  person  of  discretion  not  only  may,  but  is  bound  and 
presumed  to  know,  is,  in  criminal  cases,  no  sort  of  defence. 
Ignorantia  juris,  quod  quisque  tenetvr  scire ,  neminem  excusat , 
is  as  well  the  maxim  of  our  own  law  as  it  was  of  the  Roman.” 

4  Bl.  Com.  27. 

So  it  is  no  excuse  for  killing  a  man  in  a  duel,  and  no  reason 
for  admitting  the  murderers  to  bail,  that  they  were  foreigners, 
ignorant  that  by  the  law  of  England  it  was  murder ;  and  that,  by 
their  own  law,  killing  under  such  circumstances  would  not  be 
murder.  In  Re  Barronet  &  others,  1  El.  &  Bl.  1. 

And  courts  are  obliged  to  hold  men  guilty  for  transgressions 
of  a  statute  which  could  not  possibly  have  been  known  to  them  at 
the  time  of  the  offence,  because  they  were  on  the  high  seas,  or 
had  left  port  too  soon  after  its  enactment. 

Rex  vs.  Bailey,  Russ.  &  Ry.  1. 

.  The  Ann,  1  Gallis.  62. 


4.  A  sufficient  Criminal  Intent. 

It  is  argued  for  the  defendants  (p.  3),  that  here  was  no 
animus  furandi ;  that  “  the  purpose  was  to  destroy,  and  not 
to  appropriate ;  and  the  defendants  offered  to  prove  that  what 
was  done  was  for  the  purpose  of  prosecuting  the  civil  war.  At 


19 


all  events,  the  animus  furandi,  being  a  most  material  fact,  should 
be  passed  upon  by  the  jury.”  In  answer  to  which  — 

(1.)  It  might  be  siifficient  to  say,  that  the  defendants  did  not 
ask  to  have  that  question  put  to  the  jury,  but  submitted  all  the 
evidence  to  the  Court. 

(2.)  The  acts  of  the  officers  of  the  Sumter  were  such  as  to 
raise  a  presumption,  which,  if  not  conclusive  of  felonious  intent, 
was  sufficient,  in  the  absence  of  controlling  evidence. 

(3.)  The  best  authorities  do  not  (as  the  learned  counsel 
contends)  make  “the  animus  furandi  a  most  material  fact,”  even 
in  criminal  prosecutions  for  piracy,  much  less  in  civil  proceedings. 

See  the  authorities  collected,  ante ,  8,  10,  11 ;  post ,  22,  23. 

(4.)  The  intent  entirely  to  deprive  the  owner  of  his  pro¬ 
perty  is  all  that  is  required,  even  to  constitute  the  crime  of 
larceny ;  and  it  is  immaterial  whether  the  thief  appropriates,  or 
intends  to  appropriate,  the  property,  or  gives  it  to  another  person, 
or  destroys  it. 

Out  of  a  multitude  of  cases  on  this  subject,  only  a  few  are 
cited,  that  were  determined  by  all  the  judges  of  England. 

Seamen,  rising  in  order  to  redress  grievances,  and  not  to  run 
away  with  the  ship,  are  none  the  less  pirates. 

Rex  vs.  Hastings,  1  Moody  C.  C.  82. 

A  pilot,  taking  away,  by  collusion  with  the  master  of  a  ship,  a 
cable  and  anchor,  not  for  the  purpose  of  defrauding  the  owners 
of  the  ship,  but  for  the  purpose  of  defrauding  the  underwriters 
for  their  benefit,  is  guilty  of  “  feloniously  and  piratically  steal¬ 
ing.”  Rex  vs.  Curling,  Russ.  &  Ry.  123. 

Servants,  taking  oats  of  their  master  with  the  intent  to  give 
them  to  their  masters’  horses,  although  they  are  not  responsible 
for  the  condition  of  the  horses,  and  have  no  intent  to  apply  the 
oats  to  their  own  use,  are  guilty  of  larceny. 

Regina  vs.  Privett,  2  Car.  &  Kirw.  114. 


20 


And  a  maidservant,  who,  having  been  promised  a  place  if 
a  satisfactory  answer  should  be  returned  by  her  former  mistress 
to  an  inquiry  about  her  character,  took  the  letter  containing  such 
inquiry  out  of  the  post-office,  and  burned  it,  was  held  guilty  of 
larceny.  Regina  vs.  Jones,  2  Car.  &  Kirw.  236. 

(5.)  The  commission  of  one  crime  is  not  excused  by  an  in¬ 
tent  to  commit  another  equally  heinous. 

Lord  Bacon  tells  us,  11  In  criminalibus  svfficit  generalis  malilia 
intentionis  cum  facto  paris  gradus.  All  crimes  have  their  con¬ 
ception  in  a  corrupt  intent,  and  have  their  consummation  and 
issuing  in  some  particular  fact ;  which  though  it  be  not  the  fact 
at  the  which  the  intention  of  the  malefactor  levelled,  yet  the  law 
giveth  him  no  advantage  of  the  error,  if  another  particular  ensue 
of  as  high  a  nature.”  Maxims  of  the  Law,  reg.  15. 

So  Serjeant  Hawkins  says,  “  It  is  a  general  rule,  that  wher¬ 
ever  a  man,  intending  to  commit  one  felony,  happens  to  commit 
another,  he  is  as  much  guilty  as  if  he  had  intended  the  felony 
which  he  actually  commits.”  1  Hawk.  c.  29,  §  11. 

The  defence  may  be  likened  to  the  case  in  which  two  men, 
indicted  for  an  assault  with  intent  to  maim  and  disfigure,  con¬ 
tended  that  their  intention  was  to  murder,  and  not  to  maim.  But 
Chief  Justice  King  instructed  the  jury,  “  If  the  intention  was  to 
murder,  you  are  to  consider  whether  the  means  made  use  of  in 
order  to  effect  and  accomplish  that  murder,  and  the  consequences 
of  those  means,  were  not  in  the  intention  and  design  of  the  party; 
and  whether  every  blow  and  cut,  and  the  consequences  thereof, 
were  not  intended,  as  well  as  the  end  for  which  it  is  alleged  those 
blows  and  cuts  were  given.” 

Trial  of  Woodbourne  &  Coke,  16  Howell’s  State  Trials,  81. 

Upon  like  principles,  the  Supreme  Court  of  Massachusetts 
has  decided,  that  proof  that  au  offence  was  murder  is  no  defence 
to  an  indictment  for  manslaughter ;  and  that  a  complaint  for  an 
assault  with  a  weapon  not  dangerous  to  life  is  supported  by  evi¬ 
dence  of  an  assault  with  a  dangerous  weapon. 

Commonwealth  vs.  M‘Pike,  3  Cush.  181. 

Commonwealth  vs.  Burke,  14  Gray,  100. 


21 


Yet  the  purpose  of  the  Sumter’s  men^  the  learned  counsel 
says,  was  “  only  to  prosecute  a  civil  war  against  the  Govern¬ 
ment  of  the  United  States;”  which  is  but  saying  —  only  to  prose¬ 
cute  the  highest  crime  known  to  the  law,  in  the  only  manner  in 
which,  under  the  Constiution,  it  could  be  committed. 

U.S.  Constitution,  art.  3,  §  3  ;  ante ,  13. 

The  result  of  the  defendants’  argument  would  seem  to  be, 
that  treason  wipes  out  piracy,  and  that  traitors  cannot  be 
pirates. 


5.  Orders  of  a  Superior  no  Justification. 

The  officers  and  crew  of  the  Sumter  could  find  no  protection 
in  their  orders  or  commissions. 

Even  officers  and  magistrates,  acting  according  to  the  express 
directions  of  a  statute,  are  liable  to  an  action,  if  the  statute  is 
unconstitutional. 

Fisher  vs.  McGii’r,  1  Gray,  48. 

Kelly  vs.  Bemis,  4  Gray,  83. 

And  instructions  of  a  lawful  military  superior,  or  of  the  Pre¬ 
sident  of  the  United  States  himself,  in  excess  of  his  constitution¬ 
al  and  legal  power,  will  not  justify  an  inferior  officer. 

Little  vs.  Barreme,  2  Cranch,  179. 

Mitchell  vs.  Harmony,  13  How.  137. 

As  Judge  Washington  said,  “  No  military  or  civil  officer  can 
command  an  inferior  to  violate  the  laws  of  his  country ;  nor  will 
such  command  excuse,  much  less  justify,  the  act.  Can  it  be  for 
a  moment  pretended,  that  the  general  of  an  army,  or  the  com¬ 
mander  of  a  ship  of  war,  can  order  one  of  his  men  to  commit 
murder  or  felony  ?  Certainly  not.” 

United  States  vs.  Jones,  3  Wash.  C.  C.  220. 

But,  in  the  case  at  bar,  the  givers  and  the  holders  of  the  com¬ 
mission  were  alike  rebels  and  traitors,  acting  in  open  violation  of 
the  Constitution,  and  opposition  to  the  laws  of  the  United  States. 


The  argument  that  seeks  to  protect  the  Sumter’s  men  from 
the  charge  of  piracy,  by  a  commission  from  Jefferson  Davis, 
is  much  the  same  as  the  English  argument,  that  Andr6  was  not  a 
spy,  because  he  had  a  pass  from  Benedict  Arnold.  Of  which 
General  Halleck  well  says,  “  His  defenders  seem  to  forget,  that 
the  passport  of  a  traitor,  given  for  treasonable  purposes,  could 
afford  no  protection.” 

Halleck’s  International  Law,  c.  16,  §  27. 

6.  Piracy  in  Civil  Causes. 

But  the  question  in  this  case  is,  not  who  might  be  punished, 
but  what  was  the  nature  of  the  act ;  and,  whatever  may  be  the 
definitions  of  criminal  jurisprudence,  the  words  “piracy”  and 
“  piratical,”  in  applying  the  law  of  nations  as  between  individuals, 
do  not  necessarily  imply  an  intent  to  steal,  but  include  any  un¬ 
authorized  depredation  on  the  high  seas. 

On  an  application  to  the  High  Court  of  Admiralty,  “  in  a 
cause  of  piracy,  civil  and  maritime,”  in  behalf  of  the  King  of 
Spain  and  some  of  his  subjects,  to  receive  out  of  the  registry  of  the 
court  the  proceeds  of  a  vessel  and  cargo,  as  having  been  seized 
by  British  subjects  on  the  high  seas,  under  a  commission  from 
Buenos  Ayres,  then  a  rebellious  province  of  Spain,  which  had 
been  recognized  by  England  as  a  belligerent,  Lord  Stowell  said, 
“  The  question  is,  whether  the  court  has  authority  to  entertain 
such  a  cause.  The  question  must  be  understood  to  refer  to  piracy 
in  its  simple  and  ordinary  sense.”  “  The  present  inquiry  relates 
to  piracy  as  understood  in  the  general  law  of  nations,  and  as  con¬ 
sisting,  so  far  as  the  present  application  is  concerned,  in  an  unwar¬ 
rantable  violation  of  property  committed  upon  the  high  seas.” 

The  Hercules,  2  Dods.  368,  370. 

So  a  claim  by  American  citizens  against  a  Spanish  vessel, 
which  they  had  seized  under  a  commission  from  the  insurgent 
Government  of  Buenos  Ayres,  for  taking  which,  as  the  treaty  be¬ 
tween  the  United  States  and  Spain  declared,  they  should  be 
punished  as  pirates,  was  dismissed  by  the  Supreme  Court  of  the 


23 


United  States,  upon  tlie  ground,  that,  whatever  difficulties  might 
exist  in  “  punishing  such  aggressions  as  acts  of  piracy,  it  is  not 
to  be  questioned  that  they  are  prohibited  acts,  and  intended  to 
be  stamped  with  the  character  of  piracy.” 

The  Bello  Corrunes,  6  Wheat.  171. 

Upon  a  libel  under  the  Act  of  Congress  of  1819,  c.  77,  §  4, 
against  a  vessel  as  used  in  a  “  piratical  aggression  or  depreda¬ 
tion  ”  (which  had,  in  fact,  done  much  less  than  the  Sumter  in 
this  case),  Judge  Story,  in  delivering  the  opinion  of  the  Supreme 
Court  of  the  United  States,  said,  “  The  argument  for  the  claim¬ 
ants  seems  to  suppose,  that  the  act  does  not  intend  to  punish  any 
aggression,  which,  if  carried  into  complete  execution,  would  not 
amount  to  positive  piracy  in  contemplation  of  law  ;  that  it 
must  be  mainly,  if  not  exclusively,  done  animo  furandi  or  lucri 
causa;  and  that  it  must  unequivocally  demonstrate,  that  the 
aggression  is  with  a  view  to  plunder,  and  not  for  any  other  pur¬ 
pose,  however  hostile  or  atrocious  or  indispensable  [indefensible  ?] 
such  purpose  may  be.  We  cannot  adopt  any  such  narrow  and  limit¬ 
ed  interpretation  of  the  words  of  the  act;  and,  in  our  judgment, 
it  would  manifestly  defeat  the  objects  and  policy  of  the  act,  which 
seems  designed  to  carry  into  effect  the  general  law  of  nations  on 
the  same  subject  in  a  just  and  appropriate  manner.  Where  the  £ict 
uses  the  word  ‘  piratical,’  it  does  so  in  a  general  sense,  import¬ 
ing  that  the  aggression  is  unauthorized  by  the  law  of  nations,  hos¬ 
tile  in  its  character,  wanton  and  criminal  in  its  commission,  and 
utterly  without  any  sanction  from  any  public  authority  or  so¬ 
vereign  power.” 

The  Malek  Adhel,  2  How.  232. 

7.  Pirates  and  Assailing  Thieves  by  the  Law  of  Insurance. 

In  a  policy  of  insurance,  the  word  “  pirates,”  in  its  usual 
connection  with  “  assailing  thieves,”  has  always  received  a  very 
liberal  construction. 

The  best  modern  text-writers  on  the  law  of  insurance  agree, 
that,  under  this  clause,  underwriters  are  liable  for  piracy  or 


24 


robbery,  or  plunder  by  force,  either  by  persons  not  belonging  to 
the  vessel  or  by  the  mariners  belonging  to  it,  where  it  could  not 
have  been  prevented  by  reasonable  precautions. 

1  Phil.  Ins.  §  1106,  and  authorities  cited. 

3  Kent  Com.  (6th  ed.)  303,  and  authorities. 

2  Arnould  Ins.  §  306. 

Where  a  vessel  with  a  cargo  of  corn  was  driven  into  a  port, 
and  there  seized  by  a  mob,  who  assumed  the  government  of  her, 
and  forced  the  captain  to  sell  the  corn  at  a  low  price,  Lord  Ken¬ 
yon  was  of  opinion  that  this  was  a  loss  by  pirates. 

Nesbit  vs.  Lushington,  4  T.R.  787. 

So  the  loss  of  a  ship  by  the  insurrection  of  a  cargo  of  con¬ 
victs  is  a  loss  by  pirates,  within  the  meaning  of  a  policy  of 
insurance. 

The  General  Wood,  Perry’s  Oriental  Cases,  297. 

And  the  English  Courts  of  Exchequer  and  Exchequer  Cham¬ 
ber  both  held  that  a  loss  by  insurrection  of  Coolie  passengers 
might  be  recovered  under  a  declaration  for  loss  by  piracy  and 
theft,  notwithstanding  the  suggestion  of  counsel,  that  “  this  act 
does  not  fall  within  the  definition  of  piracy,  as  given  by  the  most 
celebrated  text-writers.” 

Naylor  vs.  Palmer,  8  Excli.  739,  750;  10  Exch.  382,  385,  389. 


The  case  has  been  thus  far  discussed  as  if  all  the  evidence  of¬ 
fered  by  the  defendants  had  been  introduced. 


8.  A  Question  for  Governments,  and  not  for  Courts. 

But  that  evidence  was  rightly  rejected,  because  it  concerned 
a  question  which  was  not  to  be  decided  by  the  courts  of  justice, 
but  by  the  political  department  of  the  Government. 

Lord  Chief  Justice  Eyre,  upon  an  indictment  for  treason,  said 
that  the  proposition,  “  that  a  people  had  a  right  to  alter  their 
government,”  “  ought  not  to  have  been  introduced  into  a  court 


25 


of  justice,  bound  to  administer  tlie  law  of  the  existing  Govern¬ 
ment,  and  to  suffer  no  innovation  upon  it.” 

Hardy’s  Trial,  24  Howell’s  State  Trials,  1371. 

Lord  Stowell  defined  the  relation  of  Great  Britain  and  other 
neutral  powers  to  the  Spanish-American  Provinces,  during  their 
war  of  independence,  thus  :  “  Orders  have  been  issued  to  observe 
what  is  termed  a  neutrality  between  the  Crown  of  Spain,  and 
communities,  which,  till  they  are  acknowledged  by  other  govern¬ 
ments. ,  are ,  upon  all  the  ordinary  principles  of  law ,  in  peril  of 
being  considered  as  mere  insurgents  by  the  tribunals  of  those 
governments  which  have  not  acknowledged  them.  No  man  can 
take  upon  himself  to  say,  that  it  belongs  to  those  tribunals  to 
determine  the  question  of  independence,  upon  which  their  own 
governments  find  it  necessary  to  be  silent.  There  may  be,  and 
is,  a  time  at  which  insurrection  is  legitimated :  but  it  is  not  for 
foreign  courts  of  justice ,  but  for  foreign  governments ,  to  deter¬ 
mine  when  that  time  is  arrived  ;  at  least,  so  far  as  their  own  tri¬ 
bunals  are  to  act  upon  transactions  respecting  them.  The 
tribunals  themselves  have  neither  competency  of  knowledge,  nor 
authority,  for  such  a  purpose.” 

The  Hercules,  2  Dods.  360. 

The  English  courts,  in  cases  which  came  before  them  some 
time  after  the  treaty  of  peace  of  1783,  relating  to  matters  which 
took  place  in  the  United  States  after  the  Declaration  of  Inde¬ 
pendence  and  before  that  treaty,  went  much  further  than  is 
necessary  for  this  case. 

The  Court  of  King’s  Bench  held,  that  a  confiscation  under  an 
act  of  New  York,  passed  in  1779,  and  an  entry  under  the  title 
thereby  acquired,  were  no  breach  of  covenants  of  seisin  and 
quiet  enjoyment  in  a  conveyance  of  land  in  New  York ;  and  that 
such  acts  of  confiscation  must  be  held  by  the  English  courts  null 
and  void. 

Dudley  vs.  Folliott,  3  T.  R.  581. 

Ogden  vs.  Folliott,  3  T.  R.  726. 

4 


26 


Lord  Kenyon  said,  “  That  Province  set  about  a  reform,  and 
to  assert  what  is  called  their  rights,  but  which  I,  sitting  here,  am 
bound  to  say  was  an  act  of  rebellion  against  the  sovereignty  of 
the  State,  and  that  their  act  was  illegal  at  that  time,  whatever 
confirmation  it  might  afterwards  receive  there  by  the  subsequent 
treaty  of  peace.”  3  T.  R.  732. 

So  it  was  held  by  the  Court  of  Chancery,  that  bank  stock  in 
England,  held  by  trustees  of  the  Province  of  Maryland,  appointed 
before  the  Revolution,  could  not  be  recovered  by  the  State  of 
Maryland  after  the  treaty  of  peace,  upon  the  ground,  as  stated 
by  Lord  Eldon,  that  “  that  State  [meaning  the  Province]  was 
only  a  corporation  under  the  great  seal,  dissolved  by  means  which 
a  court  of  justice  was  obliged  to  consider  rebellious  ;  and  then  the 
transfer  of  title  from  the  State  of  Maryland  to  any  other  State 
was  a  question  a  court  of  justice  could  look  at,  as  a  question  of 
law,  only  one  way  :  and  the  principle  was,  that  the  Court  could 
not  admit  that  the  title  passed  to  the  independent  States  of  Ame¬ 
rica  by  an  act  which  we  were  obliged  to  call  rebellion.” 

Barclay  vs.  Russell,  3  Yes.  424. 

Dolder  vs.  Lord  Hunting-field,  11  Yes.  294. 

Chief  Justice  Marshall,  in  the  leading  American  case,  states 
the  facts  and  lays  down  the  law  thus :  11  The  colony  of  St.  Do¬ 
mingo,  originally  belonging  to  France,  had  broken  the  bond  which 
connected  her  with  the  parent  State,  had  declared  herself  inde¬ 
pendent,  and  was  endeavoring  to  support  that  independence  by 
arms.  France  still  asserted  her  claim  of  sovereignty,  and  had 
employed  a  military  force  in  support  of  that  claim.  A  war  de 
facto  then  unquestionably  existed  between  France  and  St.  Do¬ 
mingo.  It  has  been  argued,  that  the  colony,  having  declared 
itself  a  sovereign  State,  and  having  thus  far  maintained  its  sove¬ 
reignty  by  arms,  must  be  considered  and  treated  by  other  nations 
as  sovereign  in  fact,  and  as  being  entitled  to  maintain  the  same 
intercourse  with  the  world  that  is  maintained  by  other  belligerent 
nations.  In  support  of  this  argument,  the  doctrines  of  Vattel 
have  been  referred  to.  But  the  language  of  that  writer  is  evidently 


27 


addressed  to  sovereigns,  not  to  courts.  It  is  for  governments  to 
decide  whether  they  will  consider  St.  Domingo  as  an  independent 
nation  ;  and  until  such  decision  shall  be  made,  or  Prance  shall 
relinquish  her  claim,  courts  of  justice  must  consider  the  ancient 
state  of  things  as  unaltered,  and  the  sovereign  power  of  France 
over  that  colony  as  still  subsisting.” 

Rose  vs.  Himely,  4  Cranch,  272. 

“  No  doctrine  is  better  established,  than  that  it  belongs  exclu¬ 
sively  to  governments  to  recognize  new  States  in  the  revolutions 
which  may  occur  in  the  world ;  and  until  such  recognition,  either  by 
our  own  government  or  the  government  to  which  the  new  State 
belonged,  courts  of  law  are  bound  to  consider  the  ancient  state  of 
things  as  remaining  unaltered.” 

Gelston  vs.  Hoyt,  3  Wheat.  324. 

See  also  United  States  vs.  Palmer,  3  Wheat.  634,  035. 

Williams  vs.  Suffolk  Ins.  Co.,  3  Sumner,  273;  13  Pet.  420. 

Halleck’s  International  Law,  c.  3,  §  22. 

So  the  boundaries  of  the  United  States,  and  the  rightful 
Governments  of  the  several  States,  must  be  ascertained  and 
determined  by  the  political,  and  not  the  judicial,  department  of 
the  Government. 

Foster  vs.  Elam,  2  Pet.  309. 

Garcia  vs.  Lee,  12  Pet.  517. 

Luther  vs.  Borden,  7  How.  42,  43. 

Perhaps  the  most  striking  application  of  this  doctrine  is  to  be 
found  in  a  suit  to  enforce  a  contract,  the  consideration  of  which 
was  advances  made  in  the  United  States  to  secure  by  arms  the 
independence  of  Texas ;  which  was  dismissed  by  the  Supreme 
Court  of  the  United  States,  upon  the  ground  that  Texas  had  not, 
at  the  time  of  the  making  of  the  contract,  been  recognized  by  the 
United  States  as  an  independent  State ;  although  it  was  acknow¬ 
ledged  as  such  within  six  months  afterwards,  (and  it  was  strenu¬ 
ously  argued  that  such  acknowledgment  did  not  fix  the  date  of 
actual  independence,)  and,  long  before  the  argument,  had  been 
admitted  into  the  Union  as  a  State. 

Kenneth  vs.  Chambers,  14  How.  38,  43,  51. 


•is 


It  has  also  been  determined  by  the  Supreme  Court  of  the 
United  States,  that  what  is  declared  piracy  by  the  treaties  or 
statutes  of  the  United  States  must  be  deemed  such  by  the  courts, 
at  least  in  civil  proceedings. 

The  Bello  Corrunes,  6  Wheat.  171. 

The  defendants,  in  one  paragraph  of  their  argument,  seem  to 
admit  this  doctrine ;  and,  in  the  next,  seek  to  qualify  it  thus  : 
“  Such  a  cruising ,  concerning  which  the  political  departments 
have  such  an  election,  is  not  piracy,  within  the  meaning  of  a 
policy  of  insurance”  (p.  4). 

But  the  authorities  just  cited  do  not  allow  courts  of  justice, 
while  the  contest  is  going  on,  and  before  any  step  has  been  taken 
by  the  Government,  to  consider  any  question  of  right  as  in  doubt 
between  the  contending  parties  ;  but  oblige  them  to  “  consider 
the  ancient  state  of  things  as  unaltered.” 

And  this  doctrine,  established  by  repeated  decisions  of  the 
Supreme  Court  of  the  United  States,  applies  with  peculiar  force 
to  a  rebellion,  within  the  territory  of  the  Union,  by  its  own  citi¬ 
zens,  seeking  to  overthrow  its  Constitution,  and  to  establish  a 
foreign  power  within  its  limits. 


9.  How  TREATED  BY  THE  GOVERNMENT. 

The  defendants  assert,  that,  “  thus  far,”  “  those  engaged 
in  cruising  against  the  commerce  of  the  United  States,  under 
Confederate  commissions,”  “  have  been  treated  as  waging  war, 
and  not  as  pirates  ”  (p.  4).  But,  though  the  right  of  referring 
to  any  public  document  of  the  United  States  is  reserved  by  the 
report  (p.  4),  the  defendants  have  not  referred  to  a  single  docu¬ 
ment  or  public  act  to  support  this  position  ;  and  a  reference  to 
a  very  few  acts  of  the  Government  will  show  that  they  have  been 
treated  as  both. 

On  the  4th  of  March,  1861,  the  President,  in  his  Inaugural 
Address,  declared  that  he  held,  “  that,  in  the  contemplation  of 


29 


universal  law  and  of  the  Constitution,  the  Union  of  these  States 
is  perpetual.”  On  the  15th  of  April,  he  issued  his  proclamation, 
reciting  that  the  laws  of  the  United  States  were  opposed,  and  the 
execution  thereof  obstructed,  in  some  of  the  States  of  the  Union, 
“  by  combinations  too  powerful  to  be  suppressed  by  the  ordinary 
course  of  judicial  proceedings,  or  by  the  powers  vested  in  the 
marshals  by  law ;  ”  and  therefore  calling  out  the  militia,  in  order 
to  suppress  said  combinations,  and  to  cause  the  laws  to  be  duly 
executed  ;  and  convening  Congress  on  the  4th  of  July,  “  to  con¬ 
sider  and  determine  such  measures  as,  in  their  wisdom,  the  public 
safety  and  interest  may  seem  to  demand.”  On  the  19tli  of  the 
some  month,  he  issued  another  proclamation,  by  which,  after 
reciting  the  breaking  out  of  “  an  insurrection  against  the  Govern¬ 
ment  of  the  United  States;”  the  issue  of  his  former  proclama¬ 
tion  ;  and  that  “  a  combination  of  persons  engaged  in  such 
insurrection  have  threatened  to  grant  pretended  letters  of  marque, 
to  authorize  the  bearers  thereof  to  commit  assaults  on  the  lives, 
vessels,  and  property  of  good  citizens  of  the  country,  lawfully 
engaged  in  commerce  on  the  high  seas  and  in  waters  of  the 
United  States  ;  ”  he  declared  a  blockade  of  the  ports  within  those 
States,  (extended  on  the  27th  of  April  to  Virginia  and  North 
Carolina,)  for  the  purpose  of  repressing  the  insurrection ;  and 
that  “  if  any  person ,  under  the  pretended  authority  of  said 
States ,  or  under  any  other  pretence ,  shall  molest  a  vessel  of  the 
United  States,  or  the  persons  or  cargo  on  hoard  of  her ,  such  per¬ 
son  will  he  held  amenable  to  the  laivs  of  the  United  States  for 
the  prevention  and  punishment  of  piracy .”  On  the  3d  of  May, 
he  called  out  an  additional  military  force,  “  for  the  protection  of 
the  National  Constitution,  and  the  preservation  of  the  National 
Union,  by  the  suppression  of  the  insurrectionary  combinations 
now  existing  in  several  States  for  opposing  the  laws  of  the  Union, 
and  obstructing  the  execution  thereof.” 

11  U.S.  Sts.  at  Large,  Appendix,  i-iv. 

At  the  time  of  the  loss  of  the  Golden  Rocket,  July  3,  1861, 
such  was  the  position  of  the  Government  of  the  United  States, 
and  Congress  had  not  yet  assembled.  It  may  well  be  doubted, 


30 


whether  subsequent  acts  can  vary  the  rights  of  the  parties  under 
this  contract  of  insurance. 

See  English  cases  cited,  ante ,  25,  26. 

The  Pelican,  Edw.  Adna.  It.  appendix,  D. 

Kennett  vs.  Chambers,  14  How.  51  ;  stated  ante,  27. 

But  the  subsequent  acts  of  the  Executive  and  Congress  pro¬ 
ceed  upon  the  same  principle. 

Acts  of  Congress  of  July  Session,  1881,  c.  9,  §  1  ;  c.  24,  §  6; 
cc.  25,  28,  33,  35  ;  c.  45,  §§  8,  52  ;  cc.  47,  48  ;  11  U.S.  Sts. 
at  Large,  268,  281,  283,  284,  285,  295,  311,  314. 
President’s  Proclamation  of  Aug.  16, 1861,  (11  U.S.  Sts.  at  Large, 
Appendix,  v.,)  and  Messages  of  July  and  December,  1861. 

See  also  Confiscation  Acts  of  July  Session,  1861,  c.  60  (11 
U.S.  Sts.  at  Large,  319),  and  July  17,  1862. 

The  Acts  of  Congress  of  the  present  session,  containing  simi¬ 
lar  provisions,  are  not  yet  in  a  shape  to  be  conveniently  referred 
to.  But  that  no  change  has  taken  place  in  the  position  of  the 
Government  is  sufficiently  shown  by  the  report  of  the  committee 
on  commerce  of  the  United  States  Senate,  upon  a  resolution  in¬ 
structing  them  to  inquire  whether  any  legislation  was  necessary  in 
relation  to  vessels  of  loyal  American  citizens  taken  by  the  rebels, 
and  retaken  from  them.  This  committee,  in  their  report  made 
by  Senator  Morrill  on  the  12th  of  June,  1862,  after  an  elaborate 
examination  of  the  subject,  state  the  argument,  “  that  these 
States  are  entitled,  for  the  time  being  at  least,  to  the  rights  of 
lawful  belligerents;  that  they  may  rightfully  capture  and  confis¬ 
cate  vessels  of  our  citizens,  without  subjecting  the  captors  to 
the  penalties  of  piracy  under  the  laws  of  the  United  States.” 
In  answer  to  this,  the  committee  quote  the  President’s  pro¬ 
clamation  of  April  19,  1851,  (above  referred  to,)  as  “  a  fresh 
pledge  of  the  national  faith  to  each  citizen,  that  the  law  of 
piracy  would  be  enforced  against  the  domestic  enemy,  and  that 
property  and  the  rights  of  property  would  be  protected  to  the 
loyal  citizen ;  ”  and  conclude  that  the  property  of  citizens  of 
the  United  States,  employed  in  lawful  trade,  could  not  “  become 


31 


prize  of  war  by  the  acts  of  its  own  citizens,”  and  that  all  claims 
“  for  prizes  or  salvage,  on  vessels  of  citizens  retaken  from  the 
rebels  by  public  vessels  of  the  United  States,  or  vessels  acting- 
under  authority  thereof,”  were  unauthorized.  And  the  com¬ 
mittee  reported  a  bill  to  secure  the  rights  of  the  original  owners, 
which  is  believed  to  have  since  passed  both  houses,  and  been  ap¬ 
proved  by  the  President. 

10.  The  United  States  Sovereign  as  well  as  Belligerent. 

The  facts,  that  the  ordinary  process  of  the  courts  is  powerless 
to  suppress  this  rebellion  ;  that  it  has  assumed  the  proportions  of 
war,  and  must  be  dealt  with  by  the  sword ;  that  the  Govern¬ 
ment  of  the  United  States  is  meeting  and  subduing  it  accordingly, 
and,  in  so  doing,  seeks  to  secure  all  legitimate  advantages,  and 
avoid  unnecessary  cruelty  ;  and  that  the  President,  in  the  exercise 
of  his  executive  functions,  may  see  fit,  for  reasons  of  policy,  to 
discharge  the  accused,  or  pardon  the  guilty  ;  give  no  rights 
to  the  rebels  nor  their  pretended  government,  nor  to  any  one 
claiming  under  them  or  their  acts.  Upon  this  point,  the  practice 
of  nations  and  the  decisions  of  the  courts  of  the  United  States 
are  alike  conclusive. 

Even  in  the  American  Revolution,  which  was  deemed  by  the 
English  Government  a  rebellion  in  the  strictest  sense,  and  which, 
as  we  have  seen  {ante,  25,  26),  was  so  treated  by  their  courts  long- 
after  the  Independence  of  the  United  States  had  been  recognized 
by  treaty,  exchanges  of  prisoners  (including  privateersmen)  were 
freely  made,  without  its  ever  being  contended  that  any  rights  had 
been  thereby  waived  on  either  side  ;  as  has  been  conclusively 
shown  in  the  Report  of  a  Committee  of  the  Massachusetts  Histori¬ 
cal  Society,  consisting  of  Mr.  Sparks,  Mr.  Everett,  Mr.  George  T. 
Curtis,  and  others;  and  in  a  letter  of  Mr.  Bancroft  to  the  Presi¬ 
dent  of  the  New  York  Historical  Soeiety. 

Mass.  Hist.  Soc.  Proceedings,  December,  1861. 

Report  of  Committee,  &c.,  pp.  6,  8,  9,  10,  17,  21,  23,  25. 

6  New  York  Historical  Magazine,  96-99. 


The  defendants,  following  Chief  Justice  Marshall,  admit  “  a 
sovereign,  who  is  endeavoring  to  reduce  his  revolted  subjects 
to  obedience,  to  possess  both  sovereign  and  belligerent  rights,  and 
to  be  capable  of  acting  in  either  character.”  And  that  great 
judge  declared,  in  the  same  connection,  “  It  is  not  intended  to  say 
that  belligerent  rights  may  not  be  superadded  to  those  of  sove¬ 
reignty.” 

Rose  vs.  Himely,  4  C ranch,  272. 

See  also  Cheriot  vs.  Foussat,  3  Binn.  253. 

Since  the  loss  of  the  Golden  Rocket,  cruisers  under  commis¬ 
sions  from  the  so-called  Confederate  States  have  been  indicted  by 
the  officers  of  the  Government,  and  tried  in  the  courts  of  the 
United  States  for  the  Districts  of  New  York  and  Pennsylvania,  for 
piracy,  and  one  of  them  convicted. 

Pamphlet  Trial  of  William  Smith,  Philadelphia,  1861. 

Trial  of  the  Savannah  Privateersmen,  New  York,  1862. 

The  opinions  of  the  courts  of  the  United  States  during  the 
present  rebellion  are  of  the  very  highest  authority  upon  these 
questions,  and  supersede  the  necessity  of  any  further  argument 
of  this  branch  of  the  case. 

In  the  trial  of  Smith,  in  October,  1861,  Judge  Grier  said,  in 
charging  the  jury,  “  Every  government  is  bound,  by  the  law  of 
self-preservation,  to  suppress  insurrections ;  and  the  fact  that  the 
number  and  power  of  the  insurgents  may  be  so  great  as  to  carry 
on  a  civil  war  against  their  legitimate  sovereign  will  not  entitle 
them  to  be  considered  a  State.  The  fact  that  a  civil  war  exists 
for  the  purpose  of  suppressing  a  rebellion  is  conclusive  evidence 
that  the  Government  of  the  United  States  refuses  to  acknowledge 
their  right  to  be  considered  as  such.  Consequently,  this  Court, 
sitting  here  to  execute  the  laws  of  the  United  States,  can  view 
those  in  rebellion  against  them  in  no  other  light  than  traitors  to 
their  country,  and  those  who  assume  by  their  authority  a  right 
to  plunder  the  property  of  our  citizens  on  the  high  sea,  as  pirates 
and  robbers.” 


Judge  Cadwallader  added,  “  The  commission  of  a  revolu¬ 
tionary  government,  whose  existence  is  not  recognized  by  that 
of  the  United  States,  can  confer  no  such  authority  as  will  change 
the  legal  character  of  piracy,  by  merely  giving  to  it  the  name 
and  form  of  privateering.” 

Smith’s  Trial,  96,  99. 

In  the  case  of  the  Savannah  privateersmen,  Judge  Nelson,  in 
answer  to  the  position,  that,  in  the  existing  war,  a  commission  of 
the  Confederate  States,  by  their  president,  Jefferson  Davis,  to  an 
armed  vessel,  “  affords  a  defence  according  to  the  law  of  nations, 
in  the  courts  of  the  enemy,  against  a  charge  of  robbery  or  piracy 
on  the  high  seas,  of  which  they  might  be  guilty  in  the  absence  of 
such  authority,”  instructed  the  jury,  that  “this  branch  of  the 
defence  involves  considerations  that  do  not  belong  to  the  courts 
of  this  country.”  He  then  stated  the  doctrines  established  by 
the  decisions  already  cited,  and  added,  “And  if  this  is  the  rule 
of  the  Federal  courts  in  the  case  of  a  revolt  and  erection  of  a  new 
government,  as  it  respects  foreign  nations,  much  more  is  the  rule 
applicable  when  the  question  arises  in  respect  to  a  revolt  and  the 
erection  of  a  new  government  within  the  limits  and  against 
the  authority  of  the  government  under  which  we  are  engaged 
in  administering  her  laws.  And,  in  this  connection,  it  is  proper 
to  say,  that  as  the  Confederate  States  must  first  be  recognized  by 
the  political  departments  of  the  mother  government,  in  order  to 
be  recognized  by  the  courts  of  the  country  (namely,  the  legisla¬ 
tive  and  executive  departments),  we  must  look  to  the  acts  of  these 
departments  as  evidence  of  the  fact.  The  act  is  the  act  of  the 
nation  through  her  constitutional  public  authorities.” 

Trial  of  Savannah  Privateersmen,  371,  372,  373. 

At  May  Term,  1861,  of  the  Circuit  Court  of  the  United  States 
for  the  District  of  Massachusetts,  Judge  Sprague  charged  the 
grand  jury  thus :  “  Suppose  that  a  number  of  States  undertake 
bv  revolution  to  throw  off  the  Government  of  the  United  States, 
and  erect  themselves  into  an  independent  nation,  and  assume  in 


34 


that  character  to  issue  commissions  authorizing  the  capture  of 
vessels  of  the  United  States :  will  such  commissions  afford  any 
protection,  to  those  acting  under  them,  against  any  penal  laws  of 
the  United  States  ?  Cases  have  heretofore  arisen,  where  a  portion 
of  a  foreign  empire,  a  colony,  has  undertaken  to  throw  off  the 
dominion  of  the  mother  country,  and  assumed  the  attitude  and 
claimed  the  rights  of  an  independent  nation ;  and  in  such  cases 
it  has  been  held,  that  the  relation  which  the  United  States  should 
hold  to  those  who  thus  attempt  and  claim  to  institute  a  new 
government  is  a  political  rather  than  a  legal  question ;  that  if 
those  departments  of  our  government  which  have  a  right  to  give 
the  law,  and  which  regulate  our  foreign  intercourse,  and  deter¬ 
mine  the  relation  in  which  we  shall  stand  to  other  nations, 
recognize  such  new  and  self-constituted  government  -as  having 
the  rights  of  a  belligerent  in  a  war  between  them  and  their 
former  rulers,  and  the  United  States  hold  a  neutral  position  in 
such  war,  then  the  judiciary,  following  the  other  departments, 
will,  to  the  same  extent,  recognize  the  new  nation. 

“  But  if  the  legislative  and  executive  departments  of  the  go¬ 
vernment  utterly  refuse  to  recognize  such  new  government,  or  to 
acknowledge  it  as  having  any  belligerent  or  national  rights,  and, 
instead  of  taking  a  neutral  attitude,  endeavor  by  force  to  suppress 
depredations  on  commerce  by  such  assumed  government,  as  vio¬ 
lating  the  rights  and  infringing  the  laws  of  the  United  States, 
then  the  judiciary  will  hold,  that  such  depredations  are  not  to  be 
considered  as  belligerent  and  entitled  to  the  immunities  of  law¬ 
ful  war,  but  as  robbery  or  other  lawless  depredations,  subject  to 
the  penalties  denounced  by  our  laws  against  such  offences.  The 
judiciary  certainly  cannot  adopt  a  more  indulgent  rule  towards 
those  who  are  in  open  rebellion  against  the  authority  of  the 
United  States,  or  towards  aliens  co-operating  with  and  acting 
under  the  assumed  authority  of  such  rebels.  While  the  other 
departments  of  the  government  and  the  nation  refuse  to  regard 
any  State,  or  association  of  States,  as  having  the  rights  of  a  bel¬ 
ligerent,  or  as  carrying  on  legitimate  war,  and  are  exerting  not 
only  moral  but  physical  force  against  them  as  rebels,  and  lawless 


35 


aggressors  upon  the  United  States  and  its  citizens,  the  courts  also 
must  so  regard  them,  and  cannot  admit  that  any  legislation  or 
assumption  of  power  by  such  State  or  States  can  authorize  acts 
in  violation  of  the  laws  of  the  United  States,  or  change  the  cha¬ 
racter  of  offences  under  them.” 

Charge  upon  the  Law  of  Piracy,  24  Law  Reporter,  17, 18. 

In  a  prize  cause  in  the  District  Court  of  the  United  States  for 
the  same  District,  a  year  later,  Judge  Sprague  said,  “  Some  have 
thought,  that,  because  the  rebels  are  traitors,  their  hostilities  can¬ 
not  be  deemed  war,  in  the  legal  or  constitutional  sense  of  that 
term ;  but,  without  such  war,  there  can  be  no  traitors.  Such  is 
the  clear  language  of  the  Constitution.  It  declares  that  treason 
against  the  United  States  ‘  shall  consist  only  in  levying  war 
against  them,  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort.’  Some  have  apprehended,  that,  if  this  conflict  of 
arms  is  to  be  deemed  war,  our  enemies  must  have,  against  the 
Government,  all  the  immunities  of  international  belligerents. 
But  this  is  to  overlook  the  double  character  which  these  enemies 
sustain.  They  are  at  the  same  time  belligerents  and  traitors,  and 
subject  to  the  liabilities  of  both;  while  the  United  States  sustain 
the  double  character  of  a  belligerent  and  sovereign,  and  have  the 
rights  of  both.  These  rights  co-exist,  and  may  be  exercised  at 
pleasure.  Thus  we  may  treat  the  crew  of  a  rebel  privateer 
merely  as  prisoners  of  war,  or  as  pirates  or  traitors ;  or  we  may, 
at  the  same  time,  give  to  a  part  of  the  crew  the  one  character, 
and  to  the  residue  the  other;  and,  after  treating  them  as  prison¬ 
ers  of  war,  we  may  exercise  our  sovereign  power,  and  deal  with 
them  as  traitors.  The  temporary  non-user  of  such  rights  is  not 
a  renunciation  of  them  ;  but  they  may  be  called  into  practical  ex¬ 
ercise  at  pleasure.  In  modern  times,  if  a  rebellion  has  assumed 
such  dimensions  as  to  raise  armies  and  involve  great  numbers,  it 
has  not  been  usual,  during  the  contest,  to  exercise  towards  pri¬ 
soners  the  sovereign  right  of  dealing  with  them  as  traitors.  They 
have  generally  been  treated  as  prisoners  of  war  until  the  contest 
is  over.  But  this  forbearance  does  not  preclude  their  govern- 


36 


ment  from  afterwards  inflicting  such  punishment  as  justice  and 
policy  may  require.” 

The  Amy  Warwick,  24  Law  Reporter,  344. 

In  summing  up  this  part  of  the  argument,  the  plaintiffs  re¬ 
spectfully,  but  confidently,  contend,  that  the  officers  and  crew  of 
the  Sumter  were  pirates  by  the  municipal  law,  and  by  the  law 
of  nations,  according  to  the  rules  either  of  criminal  or  of  civil 
jurisprudence;  that  their  pretended  commissions  were  no  defence; 
that  their  being  rebels  and  traitors  did  not  make  them  less 
pirates  ;  that  their  position  is  to  be  ascertained  by  the  political, 
and  not  by  the  judicial,  department  of  the  Government ;  that  the 
rights  of  sovereignty  are  not  impaired  by  being  vindicated  in  arms, 
and  according  to  the  usages  of  civilized  warfare ;  and  that  in  the 
view  of  the  only  department  authorized  by  the  law  of  nations, 
and  the  Constitution  of  the  United  States,  to  determine  this  ques¬ 
tion,  those  who  took  the  plaintiffs’  vessel  were  rebels,  traitors,  and 
pirates,  or,  in  the  words  of  the  policy,  “  pirates  and  assailing 
thieves.” 


II.  THIS  PIRATICAL  TAKING  WAS  NOT  A  CAPTURE,  SEIZURE, 
OR  DETENTION,  WITHIN  THE  MEANING  OF  THE  EXCEP¬ 
TION  IN  THE  MARGIN  OF  THE  POLICY. 

This  question  is  much  simpler,  and  may  be  disposed  of 
more  •briefly.  All  the  authorities  cited  by  the  defendants  may 
be  easily  distinguished,  and  shown  to  be  inapplicable,  except  one ; 
and  that  one,  the  plaintiffs  hope  to  he  able  to  show,  is  by  no  means 
so  formidable,  or  so  directly  in  point,  as  the  defendants  assert. 

In  the  body  of  the  policy  are  specified  (aside  from  the  ele¬ 
ments,  and  “  barratry,”  which  may  be  laid  out  of  this  case)  two 
classes  of  risks  : 

First ,  From  acts  of  governments  —  “enemies,”  “restraints 
and  detainments  of  all  kings,  princes,  and  people,  of  what  nation 
or  quality  soever.” 


37 


Second ,  From  individual  depredation  —  “  pirates,  assailing 
thieves.” 

Chancellor  Kent  lays  down  this  distinction  in  the  most  expli¬ 
cit  terms :  “  The  enumerated  perils  of  the  sea,  pirates ,  rovers , 
thieves ,  include  the  wrongful  and  violent  acts  of  individuals, 
whether  in  the  open  character  of  felons,  or  in  the  character  of  a 
mob,  or  as  a  mutinous  crew,  or  as  plunderers  of  shipwrecked 
goods  on  shore.”  “  But  the  stipulation  of  indemnity  against 
takings  at  sea ,  arrests ,  restraints  and  detainments  of  all  kings , 
princes ,  and  people ,  refers  only  to  the  acts  of  government  for 
government  purposes,  whether  right  or  wrong.” 

3  Kent  Com.  (6th  ed.)  303. 

And  the  later  writers  on  the  law  of  insurance  make  the  same 
classification. 

1  Phil.  Ins.  §§  1106,  1108. 

2  Arnould  on  Ins.  §§  303,  305,  306. 

Maude  &  Pollock  on  Shipping,  23,  231,  232. 

2  Parsons  Marit.  Law,  236,  246. 

In  order  to  ascertain  what  risks  in  the  policy  the  words  in  the 
margin  are  to  be  construed  to  refer  to  and  limit,  it  is  necessary  to 
ascertain, 

1st,  The  meaning  of  the  general  words  in  the  body  of  the 
policy ; 

2d,  The  meaning  of  those  in  the  marginal  exception ; 

3d,  The  rule  of  construction  in  applying  such  an  exception 
to  the  body  of  the  policy. 

The  words  in  the  policy,  defining  in  general  the  risks  as¬ 
sumed,  must  be  taken  first. 


1.  “Enemies.” 

“  Enemies  ”  are  evidently  governments,  vested,  according  to 
the  law  of  nations,  with  belligerent  power. 


38 


2.  “Restraints  and  Detainments  of  Kings,  Princes,  and  People.” 

It  is  perfectly  well  settled,  that  the  words  44  arrests,  re¬ 
straints,  and  detainments  of  kings,  princes,  and  people,  of  what 
nation,  condition,  or  quality  soever,”  extend  only  to  acts  of  the 
supreme  ruling  power  of  the  country.  They  were  doubtless 
originally  inserted  with  the  view  of  enumerating  all  possible 
forms  of  government,  monarchical,  aristocratical,  and  demo¬ 
cratic. 

In  the  leading  case  on  this  subject,  Lord  Kenyon  and  Mr. 
Justice  Bullerboth  much  relied  on  the  maxim,  Noscitur  a  sociis ; 
and  the  latter  said,  “  ‘  People’  means  4  the  supreme  power,’  ‘  the 
ruling  power  of  the  country,’  whatever  it  may  be.  This  appears 
clear  from  another  part  of  the  policy  ;  for,  where  the  underwriters 
insure  against  the  wrongful  acts  of  individuals,  they  describe 
them  by  the  names  of  ‘  pirates,  rogues,  thieves :  ’  then,  having 
stated  all  the  individual  persons  against  whose  acts  they  engage, 
they  mention  other  risks,  those  occasioned  by  the  acts  of  ‘  kings, 
princes,  and  people ,  of  what  nation,  condition,  or  quality  so¬ 
ever.’  Those  words  therefore  must  apply  to  ‘  nations  ’  in  then- 
collective  capacity.” 

Nesbit  vs.  Lushington,  4  T.  R.  788. 

Even  44  unlawful  arrests,  &c.,  of  all  kings,  princes,  and  peo¬ 
ple,”  &c.,  Judge  Story  says,  44  have  always  been  held  to  mean  the 
arrests  of  kings,  princes,  or  people,  in  their  sovereign  and  na¬ 
tional  capacity,  and  not  as  individuals.” 

M‘Call  vs.  Marine  Ins.  Co.,  8  Cranch,  66. 

See  also  Gracie  vs.  New  York  Ins.  Co.,  13  Johns.  170. 

Oliveira  vs.  Union  Ins.  Co.,  3  Wheat.  189,  190. 

The  language  of  Chief  Justice  Marshall,  in  this  last  case,  is  a 
safe  guide  in  the  case  at  bar:  “Although  the  word,  as  usually 
understood,  would  seem  to  comprehend  the  case,  yet  this  mean¬ 
ing  cannot  be  sustained,  if,  in  policies,  it  has  uniformly  received 
a  different  construction.  The  form  of  this  contract  has  been  long 
settled ;  and  the  parties  enter  into  it  without  a  particular  con¬ 
sideration  of  its  terms.  Consequently,  no  received  construction 
of  those  terms  ought  to  be  varied.” 


39 


3.  “Pirates  and  Assailing  Thieves.” 

The  meaning  of  the  words  “  pirates  and  assailing  thieves  ” 
has  already  been  sufficiently  discussed  in  the  first  branch  of  this 
argument. 

It  may,  however,  conveniently  be  added  here,  by  way  of  con¬ 
nection  with  the  words  remaining  to  be  defined,  that,  by  the  law 
of  England,  these  are  “  perils  of  the  sea,”  and  need  no  special 
stipulation  to  meet  them. 

Bright  vs.  Cowper,  1  Brownl.  21. 

Pickering  vs.  Barkley,  Style,  132. 

2  Molloy,  c.  7,  §  14. 

But  there  is  no  authority,  it  is  believed,  either  in  England  or 
in  the  United  States,  that  capture  by  enemies  is  a  peril  of  the 
sea ;  and  it  has  been  expressly  decided  in  England  that  a 
“  seizure  ”  is  not. 

Spence  vs.  Chodwick,  10  Q.  B.  517. 

We  are  thus  brought  to  consider  the  meaning  of  the  words 
“  capture,  seizure,  and  detention,”  in  the  marginal  exception. 

4.  “  Capture.” 

“  Capture,  as  applied  to  the  subject  of  marine  insurance, 
may  be  said  to  be  the  taking  of  the  ships  or  goods  belonging 
to  the  subjects  of  one  country,  by  those  of  another,  when  in  a 
state  of  public  war.”  Park  on  Ins.  c.  4,  p.  73. 

“  Capture,  properly  so  called,  is  a  taking  by  the  enemy  as 
prize,  in  time  of  open  war,  or  by  way  of  reprisals,  with  intent  to 
deprive  the  owner  of  all  dominion  or  right  of  property  over  the 
thing  taken.”  2  Arnould  on  Ins.  §  303. 

“A  capture,”  said  Chief  Justice  Parsons,  in  a  case  of  marine 
insurance,  “is  a  seizure  as  prize,  with  the  intent  or  expectation 
of  obtaining  a  condemnation.” 

Richardson  vs.  Maine  F.  &  M.  Ins.  Co.,  6  Mass.  108. 


40 


“  Taking  by  pirates,”  says  Mr.  Dane,  “  lias  none  of  the  effects 
of  legal  capture.”  “  But  taking  by  pirates  is  unlike  a  capture 
made  by  captors  not  commissioned.” 

7  Dane  Ab.  92 ;  and  see  pp.  639  4*  seq. 

The  Queen  of  England’s  proclamation  of  March  29,  1854, 
granting  reprisals  against  Russia,  provided  for  a  commission  “  to 
take  cognizance  of,  and  judicially  proceed  upon,  all,  and  all 
manner  of,  captures,  seizures,  prizes,”  <fcc. 

1  Spinks,  Appendix,  i.  ii. ;  and  see  p.  ix. 

The  Constitution  of  the  United  States,  art.  1,  §  8,  gives  Con¬ 
gress  power  to  “  make  rules  concerning  captures  on  land  and 
water.” 

See  also  Ordinances  of  the  Congress  of  the  Confederation, 
1775-1782,  6  Wheat.  Appendix,  103,  115,  120,  126. 

Halleck’s  International  Law,  c.  30. 

The  only  judicial  opinion  cited  by  the  defendants,  which  has 
any  tendency  to  show  that  a  taking  by  a  pirate  is  a  “  capture  ” 
within  the  meaning  of  the  law  of  insurance,  is  one  of  Lord  Mans¬ 
field’s.  The  whole  of  the  paragraph,  part  of  which  is  relied  on  by 
the  defendants,  is  as  follows : 

“  A  capture  by  a  pirate  (and  in  Spain,  Venice,  and  England, 
the  goods  go  to  the  captors  of  the  pirates,  against  the  owner ;  as 
there  can  be  no  condemnation  to  entitle  the  pirate),  or  a  capture 
under  a  commission,  where  there  is  no  war,  do  not  change  the 
property.  Yet,  as  between  the  insurer  and  insured,  they  are 
just  upon  the  same  foot  as  capture  by  any  enemy.” 

Goss  vs.  Withers,  2  Burr.  694,  695. 

This  was  merely  obiter  dictum;  for  the  case  concerned  only 
capture  by  and  from  an  enemy,  and  there  was  no  pirate  in  it. 

The  other  dictum  in  the  same  paragraph  (included  in  the  pa¬ 
renthesis,  and  omitted  in  the  defendants’  quotation)  is  clearly 
not  law ;  and  the  reason  assigned,  so  far  from  supporting  the 
conclusion,  refutes  it,  and  contradicts  itself :  for  how  should  the  pi¬ 
rate’s  incapacity  to  condemn  the  goods  give  him  a  title  without 
condemnation?  And  it  was  then  and  has  been  ever  since  the  well 


41 


settled  law  of  England  (as  it  is  the  general  law  of  nations),  that 
goods  taken  by  a  pirate,  and  retaken  from  him,  belong  to  the  ori¬ 
ginal  owner.  A  piratis  capta  dominium  non  mutant. 

Case  of  the  Spanish  Merchants,  2  R.  3,  pi.  4;  Jenk.  Cent.  165. 

Case  of  Piracy,  12  Co.  73. 

Greenway  vs.  Baker,  Godb.  193. 

1  Molloy,  c.  4,  §  23. 

2  Wooddeson’s  Lectures,  431. 

The  Hercules,  2  Dods.  372. 

The  Calypso,  2  Hagg.  Adm.  R.  213. 

1  Phillimore’s  International  Law,  379. 

Dr.  Wooddeson  well  says  of  the  passage  above  quoted  from 
Burrow’s  Reports,  “  The  reason  assigned  (viz.  that  there  can  be 
no  condemnation  to  entitle  the  pirate)  shows  he  acquired  no 
property,  and  therefore  could  transmit  none.  It  is  also  said, 
that 1  a  capture  under  a  commission,  where  there  is  no  war,  does 
not  change  the  property;’  the  reverse  of  which  is  laid  down  by 
Grotius.  The  sentence  in  Burr,  is  involved  ;  and  the  subject 
perhaps  not  being  familiar  to  the  reporter,  he  might  easily  mis¬ 
take  the  Court’s  meaning.” 

2  Wooddeson’s  Lectures,  431. 

It  will  be  remembered,  that  Sir  James  Burrow  himself  said 
of  his  work,  “  Its  merit  consists  in  the  correctness  of  the  states  of 
the  cases.  In  this  respect,  it  must  be  of  some  use,  especially  when 
compared  with  other  notes.  In  all  other  respects,  I  know  it  is 
very  faulty  ;  and  I  beg  pardon  of  the  bar,  and  much  more  of  the 
bench,  for  innumerable  injuries  I  must  have  done  them  as  to 
language  and  argument.  I  do  not  take  my  notes  in  short  hand. 
I  do  not  always  take  down  the  restrictions  with  which  the  speaker 
may  qualify  a  proposition  to  guard  against  its  being  understood 
universally,  or  in  too  large  a  sense.  And  therefore  I  caution  the 
reader  alwa}rs  to  imply  the  exceptions  which  ought  to  be  made, 
when  I  l’eport  such  propositions  as  falling  from  the  Judges.  I 
watch  the  sense,  rather  than  the  words ;  and  therefore  may  often 
use  some  of  my  own.  If  I  chance  not  fully  to  understand  the 
subject,  I  can  then  only  attend  to  the  words  ;  and  must,  in  such 

6 


cases,  be  liable  to  mistakes.  If  I  do  not  happen  to  know  the  autho¬ 
rities  shortly  alluded  to,  I  must  be  at  a  loss  to  comprehend  (so  as 
to  take  with  accuracy  and  precision)  the  use  made  of  them.  Un¬ 
avoidable  inattention  and  interruptions  must  occasion  chasms, 
want  of  connection,  and  confusion,  in  many  parts:  which  must 
be  patched  up  and  connected  by  memory,  guess,  or  invention  ;  or 
those  passages  totally  struck  out,  which  are  so  inexplicably  puz¬ 
zled,  in  the  original  rough  note,  that  no  glimpse  of  their  meaning 
remains  to  be  seen. 

“  I  am  thoroughly  aware  of  all  these  faults.  I  am  conscious 
too,  that,  not  having  had  the  good  fortune  of  acquiring  that  know¬ 
ledge  in  the  science  of  the  law  which  is  gotten  only  by  a  lucrative 
experience  at  the  bar,  (from  which  I  was  very  early  removed,) 
and  not  being  blessed  with  the  quickest  natural  parts,  I  may  have 
misapprehended  topics  and  allusions  ;  I  may  have  made  blun¬ 
ders  in  the  sense,  by  endeavoring  to  rectify  those  of  my  pen. 
These  are  imperfections  which  diligence  could  not  cure.  1  am 
only  concerned  lest  my  errors  should  be  imputed,  not  to  myself, 
but  to  those  whose  discourses  I  may  happen  (through  my  own 
infirmities)  to  misrepresent.” 

The  Italics  and  capitals  are  the  reporter’s  own. 

Pref.  to  1  Burr,  ix,  x. 

In  McCargo  vs.  New  Orleans  Ins.  Co.,  10  Robinson’s  Louisiana 
R.  202,  the  only  question  decided  was,  that  a  policy  on  a  cargo  of 
slaves,  against  the  usual  risks,  and  “  chiefly  against  that  of  foreign 
interference,”  but  “  warranted  by  the  assured  free  from  elopement 
or  insurrection,”  or  from  “  mutiny  or  desertion,”  did  not  make 
the  insurers  liable  for  a  loss  by  a  mutiny  and  successful  insur¬ 
rection  of  the  slaves,  who  took  possession  of  the  ship,  and  deserted 
at  the  first  port  at  which  they  arrived,  by  the  law  of  which  they 
became  free  (pp.  312  Sf  sec/.).  The  point  which  the  present  defend¬ 
ants’  counsel,  following  Mr.  Phillips  (1  Phil.  Ins.  §  1110),  allege 
to  have  been  decided,  “  that  a  loss  by  an  insurrection  of  slaves,  on 
board  as  passengers,  was  a  loss  by  capture,”  was  not  even  sug¬ 
gested  ;  and  the  word  “  capture  ”  docs  not  appear  to  have  been  in 


that  policy  ;  and  was  not  mentioned  by  the  court,  except  by  way  of 
illustrating  the  meaning  of  the  clause,  “  warranted  free  from  ” 
(p.  313).  The  question,  whether  the  slaves  had  committed  piracy, 
was  discussed  by  counsel.  For  the  plaintiff,  it  was  contended 
that  they  had  (p.  301)  ;  while  “  F.  B.  Conrad,  T.  Slidell,  and 
Benjamin,”  for  the  defendants,  with  an  unwonted  spirit  of  freedom, 
argued  that  “  these  slaves  were  instigated,  not  by  the  thirst  for 
plunder,  but  by  the  mere  desire  of  liberty  ;  ”  and  that  “  slavery  is 
against  the  law  of  nature,  and  of  no  force  or  binding  effect  beyond 
the  jurisdiction  of  the  nation  that  chooses  to  establish  it”  (pp. 
259,  277,  279.)  But  the  court  decided  the  case  upon  the  particu¬ 
lar  clause,  “  insurrection  ”  or  “  mutiny,”  without  touching  either 
“  piracy  ”  or  “  capture.” 

Mr.  Phillips  does  state,  (as  lie  is  quoted  by  the  defendants,) 
that  “  the  word  1  capture  ’  is  of  itself  broad  enough  to  comprehend 
any  forcible  seizure,  arrest,  or  detention,  which  may  be  lawfully 
insured  against.”  But  he  prefaces  this  dictum  with  a  statement, 
that  this  clause  of  the  policy,  in  its  usual  form,  “  is  more  generally 
understood  to  apply  to  captures,  seizures,  and  detention  by  the 
commissioned  officers  and  agents  of  some  lawful  and  acknow¬ 
ledged  government.”  And  he  concludes  the  section  with  a  simi¬ 
lar  statement. 

1  Phil.  Ins.  §  1110 ;  and  see  §§  1108,  1109. 

Much  reliance  is  placed  by  the  defendants  on  Emerigon’s  defi¬ 
nition  of  the  French  word  “  Prise,”  in  his  chapter  thus  entitled, 
translated  “Capture”  by  Mr.  Meredith.  On  which  it  may  be 
observed, 

(1.)  Emerigon  relies  particularly  upon  the  form  of  the 
French  policies,  which  is  omitted  in  the  translation  cited  by  the 
defendants’  counsel,  but  which,  in  the  original  edition,  includes 
“  all  acts  of  God  or  man,  of  friends ,  enemies ,  known  or  unknown , 
takings  and  detention  of  government,  reprisals,  just  or  unjust;” 
or,  as  it  stands  in  the  French,  “  Yeut  que  tons  ceux  qui  prendront 
de  cette  assured  passent  le  meme  risque  que  lui,  taut  divin 


44 


qu’humain,  d ’amis,  ennemis,  connus  ou  inconnus,  prises  et  deten¬ 
tion  de  seigneurie,  represailles  justes  ou  injustes.”  The  Italics 
are  in  the  original,  and  seem  to  show  that  he  would  class  pirates 
among  unknown  enemies. 

1  Emerigon  des  Assurances,  c.  12,  §  18. 

(2.)  But  he  has  a  separate  section  on  the  subject  of  “  Pi¬ 
rates,”  which  he  commences  by  referring  such  losses  to  the  head 
of  “  pillage  ”  in  the  Ordonnance  de  la  Marine,  although  the  very 
next  preceding  word  in  that  ordinance  is  this  very  word  “  prise.” 

1  Emerigon  des  Assurances,  c.  12,  §  28. 

1  Valin,  Ordonnance  de  la  Marine,  lib.  3,  tit.  6,  art.  26. 

And  (3.)  the  primary  meaning  of  the  French  word  “  prise”  is 
the  general  one  of  “  taking  ”  or  “  taking  up  ;  ”  and  the  meaning 
of  “  capture  ”  is  but  a  secondary  one. 

2  Fleming  A  Tibbins’s  Dictionary,  voce  “  Prise.” 

As  Mr.  Blackburn,  the  successful  counsel  in  the  case  prin¬ 
cipally  relied  on  by  the  defendants,  well  said,  in  arguing  that 
case,  “  The  definitions  given  by  Emerigon  of  ‘  prise  ’  are  not  of 
much  value  in  interpreting  the  English  words  ‘  seizure  ’  and  ‘  cap¬ 
ture,’  which  are  analogous,  but  not  necessarily  identical  in  mean¬ 
ing  ;  and  which  have,  moreover,  from  long  usage  in  policies, 
acquired  a  distinct  and  well  known  character  of  their  own.” 

Kleimvort  vs.  Shepard,  post,  48  4"  seq. 

Defendants’  Argument,  Appendix,  p.  12. 


5.  “  Seizure  and  Detention,”  in  the  Margin  of  the  Policy. 

The  words  “  seizure  ”  and  “  detention  ”  are  ejusdem  gene¬ 
ris  with  capture.  The  difference  between  them  is,  that  “  cap¬ 
ture  ”  is  appropriate  to  acts  of  belligerents ;  and  “  seizure,”  to 
any  other  acts  of  governments  or  their  authorized  officers,  such  as 
embargoes ;  and  both  look  to  final  condemnation  of  the  thing 
seized ;  while  “  detention  ”  is  only  temporary  in  its  character. 
Out  of  the  great  number  of  authorities,  a  few  will  suffice. 

Rhinelander  vs.  Ins.  Co.  of  Pennsylvania,  4  Crancli,  42-44. 

Carrington  vs.  Merchants’  Ins.  Co.,  8  Pet.  518,  519. 


45 


Bradstreet  vs.  Neptune  Ins.  Co.,  3  Sumner,  605,  606,  615,616. 

Davison  vs.  Seal  Skins,  2  Paine,  324. 

Higginson  vs.  Pomeroy,  11  Mass.  110. 

Black  vs.  Marine  Ins.  Co.,  11  Johns.  292. 

Thompson  vs.  Read,  12  S.  &  R.  443. 

Halleck’s  International  Law,  c.  12,  §  14. 

The  following  case  well  illustrates  the  meaning  of  these  words  : 
Under  a  declaration  for  a  forcible  seizure,  taking,  and  deten¬ 
tion  by  persons  unknown,  the  facts  were,  that  the  ship’s  papers 
had  been  taken  by  a  foreign  government  in  whose  port  she  was, 
and  an  insufficient  abandonment  made  by  the  assured  as  for  a 
constructive  total  loss ;  the  vessel  was  finally  seized  and  unladen 
by  that  government ;  which  was  relied  on  as  an  actual  total  loss. 
The  argument  was  interrupted  by  the  following  conversation : 
For  the  defendants  it  was  argued,  “  Can  they  recover  upon  this 
record  as  for  a  capture?  [Le  Blanc,  J.  The  record  states  a 
seizure.  Lord  Ellenborough,  C.  J.  Every  capture  is  a  seiz¬ 
ure.]  In  a  policy,  the  word  seizure  does  not  contemplate  a 
hostile  seizure.  [  Lord  Ellenborough,  C.  J.  By  the  term 
seizure  the  parties  must  have  contemplated  hostile  seizure  or 
capture.]”  And  the  plaintiffs  were  held  entitled  to  recover. 

Mellish  vs.  Andrews,  15  East,  15,  16. 


6.  “  Capture,  Seizure,  and  Detention,”  in  the  Body  of  the  Policy. 

These  words  are  used  in  the  same  sense  in  the  body  of  this 
policy ;  to  wit,  “  seizure  or  detention  for  or  on  account  of  prohi¬ 
bited  trade,  or  trade  in  articles  contraband  of  war.” 

And  the  previous  clause  in  the  body  of  the  policy,  b_j*  which, 
“  in  case  of  capture  or  detention ,”  the  assured  cannot  abandon 
“  until  proof  of  condemnation  ”  (which  could  only  be  by  a  recog¬ 
nized  government),  or  “  of  the  continuance  of  the  detention ,  by 
capture  or  other  arrest’’’’  (“arrest”  also  a  word  indicating  an 
act  in  form  of  law),  for  ninety  days,  seems  to  put  the  meaning 
of  the  exception  beyond  a  doubt. 


Rule  of  Construction. 


The  clause  “  warranted  free  from,”  it  is  well  understood, 
does  not  import  a  warranty  in  the  ordinary  sense  of  the  law 
of  insurance,  but  only  that  the  insurers  shall  not  be  liable  for 
losses  thus  enumerated. 

1  Phil.  Ins.  §  1150. 

This  clause,  being  introduced  for  the  benefit  of  the  insurers, 
is,  in  case  of  doubt,  to  be  construed  most  strongly  against  them, 
and  so  as  to  give  fair  effect  to  the  general  words  of  the  po¬ 
licy. 

Yeaton  vs.  Fry,  5  Cranch,  341. 

Palmer  vs.  Warren  Ins.  Co.,  1  Story  R.  364. 

Blackett  vs.  Royal  Exchange  Ass.  Co.,  2  Cr.  A  Jerv.  251. 

Bullen  vs.  Denning,  5  B.  &  C.  847  ;  8  D.  A  R.  662. 

Archibald  vs.  Mercantile  Ins.  Co.,  3  Pick.  74. 

Thus,  under  a  policy  against  perils  of  the  sea  on  live  animals, 
“  warranted  free  of  mortality  or  jettison,”  the  underwriters  are 
liable  for  animals,  properly  secured,  dying  in  consequence  of  the 
rolling  of  the  ship  in  a  storm,  or  in  consequence  of  their  breaking 
down  the  partitions  in  a  storm,  and  kicking  and  bruising  each 
other. 

Lawrence  vs.  Aberdein,  5  B.  A  Aid.  107. 

Gabay  vs.  Lloyd,  5  D.  A  R.  641 ;  3  B.  A  C.  793. 

So,  by  a  policy  against  the  usual  risks,  including  barratry,  but 
“  warranted  free  ”  from  seizure  for  illicit  trade,  the  insurers  are 
not  exempted  from  liability  for  loss  by  seizure  and  forfeiture  for 
illicit  trade  barratrously  carried  on  by  the  master  and  mariners. 

Suckley  vs.  Delaficld,  2  Caines  R.  222. 

American  Ins.  Co.  vs.  Dunham,  12  Wend.  463 ;  15  Wend.  1. 

Havelock  vs.  Hancill,  3  T.  R.  277. 


47 


It  has  even  been  held  in  New  York  and  Louisiana,  that  “  war¬ 
ranted  free  ”  from  loss  “  by  capture  or  detention  for  or  on  account 
of  any  illicit  trade,  or  trade  in  articles  contraband  of  war,”  did 
not  exempt  the  insurers  from  liability  for  capture  and  condemna¬ 
tion  of  the  vessel  and  cargo  (including  the  goods  insured)  for 
carrying  other  goods  contraband  of  war. 

Bowne  vs.  Shaw,  1  Caines  R.  489. 

Cucullu  vs.  Orleans  Ins.  Co.,  18  Martin,  13. 

And  it  is  well  settled,  that  the  exception  just  quoted  must  be 
limited  to  seizures  for  a  legal  and  justifiable  cause,  according  to 
the  law  of  nations  as  recognized  by  our  own  Government ;  and  that 
for  a  seizure  made  without  such  cause,  though  made  “  for  prohi¬ 
bited  trade,”  the  insurers  are  liable;  although,  as  Chief  Justice 
Tilghman  said  (4  S.  &  R.  59),  “That  it  is  within  the  words  of 
the  warranty,  is  certain.” 

Johnston  vs.  Ludlow,  1  Caines  Cas.  xxi ;  2  Johns.  Cas.  481. 

Smith  vs.  Delaware  Ins.  Co.,  3  S.  &  R.  82. 

Faudel  vs.  Phoenix  Ins.  Co.,  4  S.  &  R.  29. 

Carrington  vs.  Merchants’  Ins.  Co.,  8  Pet.  518,  524. 


8.  Powell  vs.  Hyde. 

In  Powell  vs.  Hyde,  5  El.  <fc  Bl.  607  (relied  on  by  the  defend¬ 
ants),  Lord  Campbell,  Coleridge,  and  Wightman,  JJ.,  held  that 
the  loss  of  a  British  vessel  in  the  Danube,  by  being  fired  upon  by 
the  Russians  (then  at  war  with  Turkey,  but  not  with  England), 
was  within  the  exception  of  “  warranted  free  from  capture  and 
seizure,  and  the  consequences  of  any  attempt  thereat.” 

But  that  was  a  “  capture  ”  or  “  seizure,”  in  the  usual  sense  of 
the  words,  made  by  a  power  authorized  to  wage  war,  and  then 
actually  waging  war.  As  was  suggested  by  Mr.  Justice  Erie 
(now  Chief  Justice  of  the  Common  Bench,  who  was  present  at 
the  argument,  but  took  no  part  in  the  decision),  “  If  the  seizure 
or  capture  was  supported  by  the  government  of  the  party  seizing, 
it  might  constitute  a  casus  belli.'''’  Mr.  Justice  Coleridge  (the 


48 


best  lawyer  of  the  three  judges  who  made  the  decision)  puts  it 
upon  the  ground,  that  “  this  was  a  capture  by  lawful  authority ; 
though  it  was  a  capture  that  could  not  have  been  afterwards  sus¬ 
tained.” 

And,  as  the  Russians  had  no  ground  for  their  acts,  it  may  be 
doubted  whether  that  decision  is  consistent  with  the  American 
cases  above  referred  to,  none  of  which  were  cited. 

9.  Kleixwort  vs.  Shepard. 

The  only  case  in  which  “  seizure  ”  has  been  said  to  include 
acts  of  individuals,  not  acting  under  the  authority  of  a  recognized 
government,  is  that  of  Kleinwort  vs.  Shepard,  5  Jur.  N.S.  863, 
and  1  El.  A  El.  447,  in  which  it  was  extended  by  the  Court  of 
Queen’s  Bench  to  a  mutiny  of  Coolie  passengers. 

Mr.  Justice  Coleridge  had  now  resigned;  and  this  case  was 
argued  before  Lord  Campbell,  Wightman,  Crompton,  and  Hill, 
JJ.,  none  of  whom  had  any  peculiar  experience  or  authority  in 
commercial  law,  and  the  weight  of  whose  opinion  must  therefore 
depend  upon  the  soundness  of  the  reasons  assigned  for  it. 

But  the  only  reasons,  if  reasons  they  can  be  called,  assigned 
by  Lord  Campbell  for  this  novel  conclusion,  were, 

(1.)  That  “  Dr.  Johnson  defines  ‘seizure’  to  be  the  act  of 
taking  forcible  possession.”  But,  if  dictionaries  are  to  decide 
such  questions,  it  may  be  observed  that  Johnson’s  dictionary  does 
not  purport  to  contain  legal  definitions;  that  Webster  adds 
to  Johnson’s  definitions,  “  The  act  of  taking  by  warrant,  as 
the  seizure  of  contraband  goods;”  that  one  of  Worcester’s  defi¬ 
nitions  is  “  (Law)  —  Act  of  taking  possession  by  virtue  of  an 
execution  or  legal  authority ;  ”  and  that  in  Homans’s  Cyclopaedia 
of  Commerce  (a  better  authority  than  any  of  these  on  such 
a  subject)  the  definition  is,  “  Seizure,  in  commerce ,  the  arrest 
of  some  merchandise,  movable,  or  other  matter,  either  by  conse¬ 
quence  of  some  law,  or  of  some  express  order  of  the  sovereign.” 

(2.)  “  There  is  no  decision  that  it  must  be  confined  to  belli- 


49 


gerent  seizure.”  But  precedents  are  usually  required  of  those 
who  extend  the  application  of  a  word  or  doctrine. 

(3.)  Lord  Campbell  says  (what  may  well  be  admitted,  although 
he  gives  no  reasons  for  it)  that  the  Court  think  it  cannot  be  con¬ 
fined  to  seizure  from  without.  If  a  passenger  were  an  authorized 
government  agent,  doubtless  a  seizure  by  him  would  be  within 
the  exception. 

(4.)  “  The  conjectural  motives  which  may  have  influenced 
the  parties  cannot  influence  us.”  This  is  sound  law,  but  strange¬ 
ly  inconsistent  with  his  own  next  two  reasons. 

(5.)  That  as  the  ship  was  Dutch,  and  Holland  not  at  war,  or 
likely  to  be,  the  object  could  not  have  been  merely  to  exclude 
hostile  capture  and  seizure. 

(6.)  That  the  insurers  and  insured  had  probably  discussed 
together  the  case  of  Naylor  vs.  Palmer,  ( ante ,  24.) 

(7.)  “  The  plain  meaning  of  the  language.”  Of  which,  how¬ 
ever,  either  by  itself,  or  in  connection  with  the  rest  of  the  policy, 
he  vouchsafes  no  explanation. 

It  does  not  appear  that  there  was  any  repetition,  in  the  body 
of  that  policy,  of  the  words  of  exception,  which  might  explain 
their  meaning ;  and  it  is  not  probable  that  there  was ;  for  it  is 
believed  that  the  clause  requiring  condemnation  or  ninety  days’ 
detention,  to  make  a  loss  by  capture  total,  is  of  American  ori¬ 
gin. 

The  distinction,  that  the  words,  though  not  confined  to  the 
acts  of  governments  at  war  with  that  of  the  assured,  might  still 
reasonably  be  limited  to  acts  of  government,  and  not  extend  to 
those  of  private  individuals,  (if  presented  by  counsel,)  was  mani¬ 
festly  not  seen,  much  less  answered,  by  the  Court;  and  none 
of  the  cases  or  reasons  which  support  that  distinction,  or  explain 
the  words  used  in  the  exception,  appear  to  have  been  adduced ; 
the  only  authorities  cited  being  Goss  vs.  Withers,  and  Powell  vs. 
Hyde,  which  have  been  stated  above,  ante,  40,  47. 

It  is  hard  to  see  how  Kleinwort  vs.  Shepard  can  stand  with 
the  American  decisions  on  analogous  exceptions,  and  especially 

7 


50 


with  Suckley  vs.  Delafield,  and  American  Ins.  Co.  vs.  Dunham,  or 
the  English  case  of  Havelock  vs.  Hancill  (ante,  46).  It  would 
certainly  be  a  most  absurd  result  to  exempt  iinderwriters  from 
liability  for  a  loss  by  a  rising  of  passengers  temporarily  on  board, 
and  not  selected  by  the  assured  ;  and  yet  to  hold  them  liable 
for  barratry,  of  which  Lord  Mansfield,  in  one  of  the  earliest 
cases,  very  sensibly  said,  “  It  is  somewhat  extraordinary  that  it 
should  have  crept  into  insurances,  and  still  more  that  it  should 
have  continued  in  them  so  long ;  for  the  underwriter  insures  the 
conduct  of  the  captain  (whom  he  does  not  appoint,  and  cannot 
dismiss)  to  the  owner,  who  can  do  either.” 

Nutt  vs.  Bourdieu,  1  T.R.  330. 

The  case  of  Kleinwort  vs.  Shepard  was  decided  by  only  four 
of  the  fifteen  English  common  law  judges,  and  may  probably,  be¬ 
fore  it  is  finally  disposed  of,  be  taken  to  the  Court  of  Exchequer 
Chamber,  if  not  to  the  House  of  Lords,  and^  their  decision  over¬ 
ruled.  It  is  hardly  in  any  respect  such  a  decision  as  should  induce 
this  Court  to  go  against  the  whole  current  of  American  authority, 
or  against  the  recent  express  decision  of  the  Superior  Court  of 
the  city  of  New  York,  (which  has  long  held  the  position  of  a  very 
high  authority  on  questions  of  maritime  law,)  upon  the  following 
case : 

A  policy  of  insurance  was  made  on  the  schooner  Lawrence 
Waterbury,  against  the  usual  perils,  including  “pirates,  rovers, 
thieves,”  but  “  warranted  free  from  loss  or  expense  arising  from 
capture,  seizure,  or  detention,  or  the  consequences  of  any  attempt 
thereat.”  She  was  lying  at  Norfolk,  for  repair,  on  the  21st  of 
April,  1861,  four  days  after  the  passage,  by  the  State  of  Virginia, 
of  her  secession  ordinance,  when  twenty-five  or  thirty  men  came 
alongside  of  her  with  a  steamboat,  and  professing  to  act  by  autho¬ 
rity  of  the  State  of  Virginia,  and  without  riot  or  tumult,  filled 
her  with  stones,  towed  her  out  into  the  channel,  and  there 
sunk  her.  The  Superior  Court,  at  first  at  nisi  prius ,  and  then  at 
a  general  term,  held  that  the  secession  ordinance  could  not  be 
admitted  in  evidence  for  the  defence ;  and  that  the  loss  did  not 


51 


come  within  the  exception,  but  was  a  loss  by  pirates,  rovers,  and 
thieves.  The  plaintiffs  are  much  disappointed  that  they  have  not 
yet  been  able  to  procure  a  copy  of  that  opinion  to  lay  before  this 
Court. 

Swinnerton  vs.  Columbian  Ins.  Co.,  Superior  Court  of  New  York 

City,  1862. 


10.  Conclusion. 

It  seems  difficult  to  escape  the  conclusion,  that  by  applying 
the  simple  rules  of  noscitur  a  sociis,  and  reddendo  singula  sin¬ 
gulis ,  to  the  construction  of  this  policy,  the  clause  in  the 
margin  should  be  limited  to  the  first  class  of  risks  only  —  acts 
of  government :  the  word  “  capture  ”  in  the  margin  correspond¬ 
ing  to  “  enemies  ”  in  the  body  of  the  policy  ;  and  the  more 
technical  words,  “  seizure  and  detention,”  being  synonymous  with 
the  more  common  words,  “  restraints  and  detainments,”  to  de¬ 
fine  the  meaning  of  which,  the  words  “  of  kings,  princes,  and 
people,”  &c.,  had  been  inserted. 

There  is  good  reason  for  this  distinction.  For  acts  of  recog¬ 
nized  governments,  if  irregular  or  unlawful,  the  citizen  may  have 
redress  through  his  own  government;  but  against  the  acts  of 
individual  depredators  his  insurance  is  his  only  security. 

Again :  wars,  and  captures,  seizures  and  detentions  which 
grow  out  of  them,  are  extraordinary  risks,  which  cannot  be  so 
well  estimated ;  but  the  dangers  of  unauthorized  individual 
depredation  are  less  considerable  and  more  uniform. 

The  history  of  the  marginal  clause  in  question  supports  the 
same  conclusion.  It  is  generally  known  as  the  “  war  clause,” 
and  was  introduced  years  before  the  present  rebellion.  Indeed, 
the  policy  in  suit  was  issued  before  any  of  the  States  had  under¬ 
taken  to  secede,  or  any  danger  from  their  cruisers  was  appre¬ 
hended.  And  it  has  been  the  usage  of  insurance  companies,  in 
New  England  at  least,  under  policies  containing  this  clause,  to 
pay  losses  by  piracy  in  the  Eastern  seas. 


If,  contrary  to  the  plaintiffs’  expectation,  the  Court  should 
hold  that  they  are  not  entitled  to  judgment  on  this  declaration, 
they  pray,  if  the  defect  is  merely  formal,  that  it  may  be  amended, 
and  judgment  then  rendered  for  them. 

Cleaves  vs.  Lord,  3  Gray,  71,  72,  and  authorities  cited. 
Stone  vs.  White,  8  Gray,  595,  596. 

But  if  the  Court  should  be  of  opinion  that  the  facts,  as  now 
presented,  do  not  show  a  case  on  which  the  plaintiffs  would  be 
entitled  to  recover,  and  that,  pursuant  to  the  terms  of  the  Judge’s 
report,  a  new  trial  must  be  granted,  the  plaintiffs  pray  for  leave 
to  amend  their  declaration,  with  a  view  to  such  new  trial,  as  was 
done  in  the  case,  upon  which  the  defendants  so  much  rely,  of 
Kleinwort  vs.  Shepard,  5  Jur.  N.  S.  865. 


All  which  is  respectfully  submitted  by 

BICHARD  H.  DANA,  Jun., 
HORACE  GRAY,  Jun., 

Of  Counsel  for  the  Plaintiffs. 


Trials „ 


L65824 


/  a  fz-z  ? 


